AFGE 2011 Issue Papers
Table of Contents
INTRODUCTION
Federal Pay………………………………………………………………………….……..……1
Federal Employees’ Health Benefits Program……………………………………………..10
Federal Retirement……………………………………………………………………………16
Effective Representation of Federal Employees (Official Time)………………................20
Back to the Future: Arbitrary Cuts in Civil Servants………………………………………24
Sourcing: Complying with the Law…………………………………………………….....…34
Transportation Security Administration and TSOs…………………………………….…..42
Whistleblower Protection………………………………………………………………….….49
Domestic Partnership Benefits………………………………………………………………51
Employment Non-Discrimination Act………………………………………………………..56
Paid Parental Leave…………………………………………………………………………..58
One America, Many Voices……………………………………………………………...…...61
Department of Veterans Affairs………………………………………………………………63
Department of Defense…………………………….……………………….………………...74
Federal Prisons……………………………..……………………………………………….…89
Environmental Protection Agency……………………………………………………...…..102
Social Security Administration………………………………………………………………121
National Guard Technicians……………………………...…………………………………124
District of Columbia Workers………………………………………………………………..126
Equal Employment Opportunity Commission…………………………………………......130
INTRODUCTION
BEEN THERE, DONE THAT, WON’T DO THAT AGAIN
Recommendations to slash the federal civil service by hundreds of thousands of
government workers in order to undertake more wasteful privatization.
Threats of government shutdowns because of Congressional refusals to raise the debt
ceiling or pass appropriations bills.
Proposals to slash federal employee pay and benefits in order to pay for tax cuts
skewed towards the very rich.
With those initiatives being considered by a radical new House Republican leadership
that scapegoats federal employees coupled with a Democratic Administration that may
be all too willing to sacrifice the interests of federal employees.
That’s the inhospitable political landscape federal employees face in 2011. But it is also
remarkably similar to the political landscape AFGE faced in the mid-1990’s. As the
112th Congress begins, AFGE Activists can take inspiration from history--that we fought
these battles before, some of them for several years, and won all three. And if AFGE
members--Democrats, Republicans, and Independents—work together again, there is
no reason why we won’t prevail again.
Downsizing
That was then: The Federal Workforce Restructuring Act of 1994 required the federal
civil service to be reduced by approximately one-tenth. Even before the legislation had
been enacted, senior officials complained to the Office of Management and Budget that
personnel ceilings were forcing their agencies to contract out functions that could be
performed more efficiently in-house. In the following years, report after report
documented that agencies were contracting out functions regardless of cost, risk, policy,
or even the law because of arbitrary downsizing.
AFGE led the effort to clean up the mess caused by indiscriminate privatization, working
with the Congress to pass laws that prevented agencies from giving work to contractors
without first conducting formal cost comparisons (2004, 2006, 2007, 2009), required
agencies to inventory their service contracts so that they can identify contracts that cost
too much, aren’t working, or include functions that never should have been outsourced
(2007, 2009); and rebalance their workforces through insourcing (2007, 2008).
Today: In a sad testament to the impoverishment of our political culture, the handpicked chairs of the President’s Deficit Commission recommended in December 2010
that the federal civil service be reduced by, you guessed it, one-tenth. Now, leading
House Republicans are insisting that our workforce be arbitrarily reduced by 15%.
Shutdowns
That was then: House Republican leaders shut down the federal government for two
extended periods during the winter of 1995-1996 in order to implement what they
acknowledged to be a radical anti-government agenda, one which would have slashed
spending for Medicare, Medicaid, education, environmental protection, and the safety
net for the poor. The first shutdown lasted from November 14 through November 19,
1995. The second shutdown lasted from December 16, 1995, through January 6,
1996. Both of these shutdowns were caused by the refusal of Congressional
Republican leaders, particularly in the House, to pass reasonable appropriations bills,
i.e., funding measures which pay for the programs carried out by federal
employees. However, Congressional Republican leaders also threatened to shut down
the federal government by failing to raise the debt ceiling. Federal employees were
caught in the political cross-fire, and large parts of the federal civil service workforce
were furloughed without pay.
AFGE Activists proved to the public the value of federal employees and the important
services they provide, and Congressional Republican leaders stopped using federal
employees as pawns in their budget battles. In fact, adversely affected federal
employees were made whole for the time during which they were furloughed. There
was bipartisan agreement that holding appropriations bills hostage was wasteful,
disruptive, and irresponsible; it was also understood that a failure to promptly raise the
debt ceiling would shake investor confidence, raise interest rates, and just generally
increase the cost to taxpayers of government borrowing. Many Republican leaders
believed that the public’s dismay over their shutdown strategy helped to fuel President
Clinton’s successful re-election campaign.
Today: An increasing number of rank-and-file Congressional Republicans talk openly of
forcing a government shutdown in order to gain the upper hand in the upcoming budget
battles with President Obama. A continuing resolution was passed during the lameduck 111th Congress that would keep the government funded through March 4,
2011. In order to avoid a government shutdown, the new Congress will have to pass
either the FY11 appropriations bills or yet another continuing resolution. Also in the first
half of 2011, the Congress will have to pass an extension of the debt
ceiling. Economists predict that a failure to do would jeopardize the American
economy’s fragile recovery.
Cuts in Compensation
That was then: The 105th Congress passed massive tax cuts for the wealthy and
corporations. In order to pay in part for those cuts, Congress proposed significant cuts
in the benefits of the working- and middle-class Americans who served as federal
employees. Among the cuts proposed by Congressional Republican leaders:
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increase the retirement tax by 2.5% (i.e., the amount which federal employees
must contribute to the retirement trust fund);
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delay the cost-of-living adjustment (COLA) for federal retirees;
change the formula for determining retirement benefits from the highest three
years of salary to the highest five years, and
slash the agency FEHBP contribution from 72% to 55%, costing the average
federal employee an additional $500 per year.
Thanks to AFGE, the 1997 Balanced Budget Act increased the retirement tax by just
0.5% and the COLA was delayed only until April. Changes to “high five” and FEHBP
were defeated. Later on, AFGE led the successful fight to repeal the retirement tax
hike and the COLA delay.
Today: The co-chairs of the President’s Deficit Commission in December 2010
recommended that:
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the COLA be reduced so that it is no longer representative of actual cost
increases;
retirement annuities should be based on the highest five years of service, costing
federal employees 3-5% annually when they are retired;
Federal Employees Retirement System enrollees be required to substantially
increase their retirement contributions by 5-7% of their paychecks; and
Federal employees increase their contributions towards FEHBP from the current
level of 30%, on average, to 63%, over 20 years.
Federal Pay
Introduction
Under the Federal Employees Pay Comparability Act (FEPCA), federal employees who
are paid under the General Schedule are supposed to receive salaries that are roughly
95 percent of “market comparability.” This bipartisan law, enacted in 1990, established
the principle that federal pay policy should be governed by the market, and set salaries
at levels just five percent less than the standards set in the private sector. FEPCA
required that the government produce a measure of market comparability on a regional
basis, and provide annual adjustments that simultaneously close any measured gaps
and make certain that no existing gap become larger. This was to be accomplished by
providing federal employees with annual pay adjustments that had two components:
one locality-based gap-closing adjustment, and one nationwide across-the-board
adjustment. The locality adjustments are based on measures of pay gaps that use
Bureau of Labor Statistics (BLS) data from surveys that compare, on a job-by-job basis,
salaries in the federal government and those in the private sector and state and local
government. The nationwide adjustments are based on BLS’s Employment Cost Index
(ECI), a broad measure of changes in private sector wages and salaries from across all
industries and regions (the FEPCA formula is ECI – 0.5 percent).
Had the schedule for closing the pay gaps put forth in FEPCA been followed,
comparability would have been realized in 2002. But in each year since 1995,
Congress and successive presidents have found reason to reduce the size of both the
locality and ECI-based adjustments dictated by the law, variously citing economic
emergency and deficit-cutting as rationale. In spite of the repeated use of alternatives
to the terms of FEPCA, there has been strong, consistent and broad bipartisan support
for the goal of paying federal employees salaries that are comparable to those paid by
private firms and state and local governments that employ people for the same kinds of
jobs. AFGE will work to maintain support for the principle of pay comparability that uses
job-by-job salary comparisons for all federal pay systems.
The Two-Year Freeze
How did a two-year freeze on the wages and salaries of federal employees become our
nation’s response to the collapse of the housing bubble, the financial crisis caused by
this collapse, the bailout of large banks, insurance companies, and Wall Street firms;
and the fact that health care costs will continue to soar in spite of the passage of health
care reform? As wrong as it may seem, a consensus formed in late 2010 around the
idea that because so many working class people were experiencing economic hardship
as a result of the corrupt practices of banks and Wall Street firms, federal employees
should experience hardship as well, and a two-year federal pay freeze was enacted at
the close of the 111th Congress.
Nobel Laureate Paul Krugman referred to the freeze as “cynical deficit reduction
theater” that was “a literally cheap trick that only sounds impressive.” He also confirmed
that “federal salaries are, on average, somewhat less than those of private sector
workers with equivalent qualifications.” But none of these facts seemed to matter to
President Obama or the members of Congress who voted for the freeze. They were, at
least to some degree, responding to a well-orchestrated campaign by USA Today, the
Heritage Foundation, and the Cato Institute that used a combination of sophistry and
outright lies to make a case that federal employees are overpaid relative to their private
sector counterparts.
Facts are stubborn things; and whatever may be our wishes, our inclinations, the
dictates of our passions, they cannot alter the state of facts and evidence.
John Adams, in defense of the British soldiers on trial for the
Boston Massacre, December 4, 1770
In spite of the pay freeze, going forward AFGE will urge lawmakers to rely upon “the
state of facts and evidence” regarding federal pay. And the facts are that even prior to
the freeze, federal wages and salaries were lower than the wages and salaries in the
private sector and state and local government, when compared on a job-by-job basis
both nationally and regionally. The Federal Salary Council (FSC), a statutory body
responsible for examining objective data that compares what private sector and state
and local government employers pay for the jobs federal employees perform to what the
federal government pays, has found consistently that federal employees are underpaid.
The amounts of underpayment vary by locality, but the advantage in all places goes to
the private sector.
The Campaign Against the Truth on Federal Pay
Since the summer of 2010, USA Today has placed numerous articles on its front page
that twist the facts surrounding federal pay to pretend that federal employees are
overcompensated. The articles have compared gross averages in the private sector to
average salaries of the current federal workforce, manufactured data on the dollar value
of private sector fringe benefits and compared it to distorted data on the cost of federal
benefits, and sensationalized the fact that a growing number of federal salaries have
exceeded $100,000 per year. The Washington Post helped to promote the myth of
overpayment in October 2010 by commissioning a poll that asked Americans whether
they believed that federal employees were underpaid or overpaid, implicitly giving
support to the notion that such issues are a matter of opinion rather than fact. The
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results of the poll reflected only how well the USA Today misinformation campaign had
worked.
To bolster the false impression of federal employee overcompensation even more, the
Heritage Foundation’s James Sherk published a deeply flawed econometric study
(http://www.heritage.org/research/reports/2010/07/comparing-pay-in-the-federalgovernment-and-the-private-sector) with a headline-grabbing claim that the government
“overtaxes all Americans” by providing federal employee pay and benefits “on the order
of 30 percent to 40 percent above similarly skilled private sector workers.” Sherk
claimed that federal salaries are “22 percent above private sector workers.” In an odd
coincidence, Sherk’s numbers are the mirror opposite of the calculations performed by
the economists and pay experts from the Bureau of Labor Statistics (BLS) and the
Office of Personnel Management (OPM), whose data for the same year showed federal
pay lagging behind the private sector by 22 percent.
Why did Sherk and OPM/BLS come up with opposite numbers? The simple answer is
that the Sherk study has highly politicized assumptions, and is based on data that are
entirely inappropriate for use in salary comparisons. The BLS and OPM results derive
from objective calculations and high quality data from the BLS’s National Compensation
Survey (NCS), a survey designed specifically for use by private and public employers to
gauge salary rates and differences by occupation and location. Sherk used Current
Population Survey (CPS) data from interviews with random individuals who were asked
how much they made, how much their employer spent on their benefits, and what their
occupation was. Another source of data used by purveyors of the myth of the overpaid
federal employee is the Bureau of Economic Analysis (BEA), part of the Commerce
Department. The BEA itself warns the public not to use its data for comparing federal
and non-federal salaries, noting on its website that “federal compensation estimates
include sizable payments for unfunded liabilities that distort comparisons with privatesector compensation. For 2006, for example, the value of these payments for unfunded
liability were\
$28.6 billion or 10.7 percent of total federal civilian compensation”
(http://www.bea.gov/faq/index.cfm?faq_id=320&start=0&cat_id=0). Further, both these
data and Sherk’s are “bounded” at the top and bottom and exclude private salaries
lower than $21,544 and higher than $190,119. Thus, even though salary and bonuses
for those working in Wall Street securities and financial industries routinely run into the
millions, the BEA dataset artificially caps salaries at under $200,000.
The Federal Salary Council Approach
The Federal Salary Council uses BLS data gathered by trained data collectors who visit
businesses and government agencies and record detailed information about the job
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duties assigned to workers at each salary level and at each location. In addition, the
dataset used by Sherk asks individuals to identify their occupations by broad industrial
categories; e.g., a lawyer would have an occupation called “legal services” as would
many others with jobs in that industry. In contrast, the BLS data records, for example, a
salary for a “senior attorney with at least ten years of experience in administrative law
and litigation in the area of securities law.” The legal profession includes a broad range
of salaries, with the majority of lawyers earning modest salaries for providing routine
services such as title searches, real estate closings, preparation of simple wills, and
representation in small claims court. While many attorneys employed by the
government perform similarly routine functions, many more are responsible for complex
litigation and regulatory oversight. The data in the National Compensation Survey
capture these differences and apply them to the calculation of the gap between federal
and private sector pay exactly according to their weight in the overall distribution of
federal jobs.
Another difference that explains the opposite results of Sherk and the BLS and OPM is
methodological. Sherk uses the “human capital” approach, comparing the pay of
individuals on the basis of personal attributes such as age, industry, geographical
location, gender, race, ethnicity, educational attainment, occupation and tenure. One
appalling result of Sherk’s approach is that he interprets the fact that the federal
government is less likely to discriminate against women and minorities in terms of pay
as an instance of the government “overpaying” relative to the private sector.
In contrast to Sherk, the BLS and OPM use a method that matches federal jobs with
jobs in the private sector that are similar not only in terms of occupation but also that
match levels of responsibility, and levels of expertise required. The personal attributes
of the job holder are not included in the calculation, only job description, duties, and
responsibilities. In this careful analysis, which focuses on the jobs of the actual federal
workforce, the universal and consistent finding is that federal employees are underpaid
relative to their counterparts in both the private sector and state and local government.
While the human capital approach is a valid way to reveal patterns of discrimination
against individuals, it is not appropriate for pay-setting. Unfortunately, it has proved to
be extremely valuable for scoring cheap political points, as President Obama’s adoption
of the pay freeze idea attests.
Just ten months prior to announcing the freeze, President Obama’s budget explained
why the comparisons being hyped in the media and conservative think tanks were
misleading. He noted that “since 1989 federal and private sector raises have never
diverged by more than one percentage point…and the adjustments have offset each
other so that the average difference has been only one tenth of one percentage point”
over ten years. He went on to describe the profound differences between the federal
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and private sector workforces, noting that “about 20 percent of federal workers have a
master’s degree, professional degree, or doctorate versus only 12 percent in the private
sector. A full 51 percent of federal employees have at least a college degree compared
to 35 percent in the private sector.” (See the President’s FY 2011 Budget, Chapter 10
“Improving the Federal Workforce” p.99-101).
The gratuitous nature of the freeze was revealed in President Obama’s “belt tightening”
justification. He did not pretend to believe the lie that federal employees are overpaid
relative to those performing the same type of work in the private sector. He also did not
pretend to believe that the $2 billion savings in 2011, or the $5 billion savings in 2012
would make a dent in the deficit. In fact, using the macroeconomic model developed by
Obama administration economists Christine Romer and Jared Bernstein to measure the
impact of the stimulus, the Center for Economic and Policy Research estimates that the
federal pay freeze will reduce GDP by 0.007 percent in 2011 and by 0.018 percent in
2012, “implying drops in private sector employment in these years of 7,000 and 18,000
jobs respectively.” http://www.cepr.net/index.php/blogs/beat-the-press/president-obamaproposes-reducing-private-sector-employment-by-7000-in-2011-and-18000-in-2012.
The pay freeze had no justification other than one single day when many elected
Republicans praised President Obama for joining their effort to reduce living standards
of America’s working and middle class.
AFGE will work with Members of Congress to thaw the federal pay freeze so that the
government can once again begin to make progress in eliminating the pay gap between
federal and non-federal salaries, and help the federal government recruit and retain the
high quality workforce necessary to carry out its crucial missions.
The Federal Wage System: Blue Collar Federal Pay
In November 2010, the Federal Prevailing Rate Advisory Committee (FPRAC) voted to
end the practice of treating blue collar and white collar federal employees differently
with regard to the drawing of local labor market boundaries. The effect of the FPRACsupported regulation would be to limit each non-Rest of U.S. General Schedule (GS)
locality to one Federal Wage System(FWS) local wage area. The new policy awaits
approval by the OPM Director who must submit it for public review as a proposed
regulation before final adoption.
Unifying FWS and GS Locality Boundaries Brings the FWS into the 21st Century
One important argument in favor of unifying FWS local wage areas and GS localities is
that it modernizes the prevailing rate system’s recognition of what constitutes a local
labor market. Chapter 53 of Title 5 directs OPM to maintain “a continuing program of
maintenance and improvement designed to keep the prevailing rate system fully abreast
of changing conditions, practices, and techniques both in and out of the Government of
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the United States.” When the prevailing rate system’s current local wage area
boundary-drawing criteria were established 50 years ago, the white collar pay system
did not yet vary salaries on the basis of local labor markets. The boundaries were
drawn around federal facilities that employed large numbers of blue collar federal
employees. Many of those federal blue collar jobs and facilities no longer exist, but the
separate facility-based wage areas do still exist. These old wage areas also reflect a
time before the expansion of metropolitan areas and the establishment of new highways
and public transit systems.
In addition, the enactment of FEPCA in 1990 led to the establishment of modern criteria
for defining the local labor markets, putting an emphasis on commuting data from the
decennial census. These data are widely used by employers in both the public and
private sectors to define local labor markets. In contrast, the FWS continues to draw
boundaries on the basis of custom, tradition, and often out-of-date information on
concentrations of blue collar workers in the private and federal sectors. It is time for
FPRAC to recognize that the commuting patterns recognized by the GS system are the
most relevant factors for local labor market definitions.
Congress Already Treats FWS and GS Equally for Purposes of Annual Pay
Adjustments
Prior to the freeze, the Congress has voted in each of the last eight years to treat the
federal government’s blue and white collar employees the same with regard to annual
locality pay adjustments. Recognizing that all FWS employees within a given GS
locality deserve to be treated as if they worked in the same local labor market, the
Congress has directed federal agencies to provide the same annual percentage pay
adjustment to all blue collar workers within a given GS locality. Congress has
recognized that this is an important element of the internal equity that it wants federal
pay systems to maintain. Indeed, almost all federal agencies with non-GS pay systems
that grant locality differentials have voluntarily adopted the GS locality boundary
definitions for non-GS employees, including the Transportation Security Administration’s
PASS system, the recently discontinued National Security Personnel System (NSPS),
and numerous others.1
1
A partial list includes: Agency for International Development’s experts and
consultants, Agriculture Department’s experts and consultants and seasonal
employees, American Battle Monuments Commission, Commerce Department’s
examiners on the board of patent appeals and attorney examiners on the trademark
trial and appeal board, Corporation for national and community service, Department
of Defense’s military universities and institutes, and the Defense Advanced Research
Projects Agency, and various demonstration projects and alternative systems that
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Maintaining Different Local Labor Market Boundaries for Blue and White Collar
Workers is Inequitable
Treating blue collar workers as if they are in one local labor market for purposes of
annual pay adjustments and as if they are in a different local labor market for purposes
of setting underlying base pay is inconsistent and inequitable. It violates basic
standards of fairness. The policy makes an invidious distinction among federal
employees in pay-setting. Blue collar workers are treated differently from white collar
workers for reasons entirely unrelated to the work that they do. It is not and should not
be acceptable to treat workers of different races or genders or ages who work in the
same location as if they were in different local labor markets; likewise, it should not be
acceptable for any employer, and especially not the federal government, to make this
distinction on the basis of blue collar vs. white collar work.
Disparate Treatment Creates Internal Conflict at the Workplace
Continuation of the current practice of treating different federal employees in the same
federal workplace as if they work in different localities creates massive inequities and
disunity. For example, the Tobyhanna Army Depot is located in the New York City GS
emerged from demonstration projects, such as China Lake and National Institute of
Standards and Technology; Defense Nuclear Facilities Safety Board, Department of
Energy, Department of Education, Environmental Protection Agency, Export-Import
Bank, General Services Administration, Department of Homeland Security’s
scientists and engineers at its Advanced Research Projects Agency, Coast Guard
Academy, and the Secret Service, Department of Interior’s US Park Police,
Department of Justice’s immigration judges, Department of Labor’s administrative
law judges, National Archives, National Science Foundation, Nuclear Regulatory
Commission, Office of Personnel Management’s experts and consultants, Overseas
Private Investment Corporation, Peace Corps, Security and Exchange Commission’s
economists, Small Business Administration, Smithsonian’s National Zoological Park
employees, State Department, including employees at US Mission to the United
Nations and Foreign Service Officer pay under 22 USC 3963; Treasury Department’s
Bureau of Engraving, Printing, and Bureau of the Mint, U.S. Trade and Development
Agency, Department of Veterans’ Affairs numerous title 38 medical employees
including physician assistants, optometrists, podiatrists, and expanded-function
dental auxiliaries, medical support personal, non-physician, non-dentist, and nonnurse, and members of the Board of Veterans’ Appeals.
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locality and the Scranton FWS locality. The resulting pay inequities are extremely
troubling and indefensible. At Tobyhanna, WG-11 Electronics Mechanics and
Production Machinery Mechanics are responsible for highly complex electronics
weapons manufacture, repair, modification, configuration, installation, and testing. They
are responsible for equipment and machinery that is worth hundreds of millions of
dollars and directly affects the progress of war and the well-being of warfighters. The
skilled tradesmen and women who perform these jobs work directly with GS personnel,
side-by-side, day after day. The blue collar annual pay ranges from $44,928 to
$52,416. In the same building at the same time, GS-9 Process Improvements
Specialists earn between $53,500 and $69,545 and GS-7 Secretaries earn between
$43,738 and $56,863 with a career ladder that makes them eligible for GS-8 salaries of
between $48,439 and $62,966. No one is questioning the appropriateness of the
Federal Salary Council’s designation of Tobyhanna as being within the New York City
commuting area; it is a well-established observable fact, as described by census data.
What is questioned is pretending that the blue collar workers at Tobyhanna work in a
different location than the white collar workers there.
Unifying FWS and GS Locality Boundaries is Not New, Just Overdue
In 2008, the Federal Prevailing Rate Advisory Committee (FPRAC) undertook a
comprehensive examination of the criteria for defining FWS wage areas. At that time,
numerous updates were adopted, including the requirement that wage area boundaries
would not split Metropolitan Statistical Areas (MSAs) as defined by the Office of
Management and Budget (OMB). The unification of MSAs was justified on the basis of
a recognition that the FWS wage areas reflected outdated notions about how far
workers in the skilled trades would commute to jobs. Census data that are used to
define MSAs proved that commuting patterns in large metropolitan areas that include
urban cores, suburbs, and “exurbs,” are similar for workers in all occupations. The next
step was to unify the FWS and GS locality boundaries, since the latter are determined
by a combination of MSA definitions, commuting patterns, and concentrations of federal
employment. However, the Bush administration would not allow the unification of FWS
and GS boundaries to go forward, and that is why this element of the modernization of
FWS boundary criteria remains to be addressed.
Conclusion
The federal pay system played no role in the creation of the economic crisis that
required massive government spending to resolve. Federal employees did not cause
the housing bubble either to inflate or to burst. Federal employees did not engage in
speculative investments in derivatives of mortgage securities. Federal employees did
not mislead investors, did not outsource jobs to China or Mexico, and did not destroy
the financial system. The pay freeze was a cynical ploy to appease those who oppose
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the missions of almost every executive branch agency and program. Federal
employees deserve better than the role of pawn in the war against government.
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Federal Employees’ Health Benefits Program
The Federal employees’ Health Benefits Program (FEHBP), which covers more than
eight million federal employees, retirees, and their dependents, is the nation’s largest
employer-sponsored health insurance program. FEHBP was affected by the Patient
Protection and Affordable Care Act, otherwise known as the healthcare reform law.
FEHBP is also a target of the President’s National Commission on Fiscal Responsibility,
the “deficit commission,” which recommended dismantling the program and turning it
into a voucher program. AFGE strongly opposes the deficit commission’s proposals.
The Affordable Care Act and FEHBP
Many of the consumer safeguards and structural features of the health care reform
package passed by the last Congress were modeled on elements of FEHBP, including
the prohibitions against excluding people with pre-existing conditions from insurance
coverage, imposing lifetime dollar limits on essential benefits, including costs associated
with hospital stays, and dropping people from their policies when they become ill or
injured. But the Affordable Care Act also extended to FEHBP participants some new
benefits and protections. In 2011, the most notable new benefit is the ability to keep
dependents on family coverage plans up to the age of 26. Previously, the dependents
of federal employees and retirees were only permitted to remain on their parents’ plans
up to the age of 22. This age extension will help many federal employees and their
families, especially given the high unemployment rates for young adults and the fact
that so many private employers shirk their responsibilities when it comes to providing
health insurance benefits.
Also thanks to the Affordable Care Act, as of 2011, FEHBP plans will no longer be able
to charge any separate copayments for preventive care, including annual screenings.
In addition, all the plans will be providing expanded smoking cessation benefits, again
with no copayment requirements. These smoking cessation benefits include drugs
prescribed to assist with cessation as well as counseling.
Beginning in 2014, the income-based government subsidies for individuals to purchase
health insurance from state-run “exchanges” will become available. Unfortunately, tens
of thousands of federal employees will qualify for these subsidies because their
incomes are so low. The numbers of federal employees eligible for subsidized
purchase through the exchange will be larger than originally anticipated because of the
two-year pay freeze President Obama and the 111th Congress enacted. The subsidies
will be calculated partially to limit the share of family income paid out in premiums, and
partially on the basis of family size.
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Some low income federal employees may become eligible, in 2014, for a subsidy
through the Affordable Care Act, if their salaries put them and their families within 200
percent of the poverty line and their share of FEHBP premiums exceeds 9.5% of their
family incomes. The 200 percent of the poverty line, using 2010 numbers, would
include families of four who earn less than about $44,000 per year. But, again using
2010 data, the employee share of premiums under FEHBP rises to 9.5 percent of
income only for those employees who earn $30,000 or less. Of course, the combination
of the pay freeze and the continued rise in FEHBP premiums means that by 2014,
FEHBP premiums will likely be more than 9.5 percent of income for federal employees
at much higher salaries.
Currently, the combined standards (200 percent of poverty and cost-sharing that does
not exceed 9.5 percent of income) cover federal employees in most parts of the country
who support their families on salaries up to the middle of a General Schedule Grade 4
(for 2010, 2011 and 2012, Rest of US GS-04-04 is frozen at $30,788). The Act’s
scheduled subsidy for a family of four with a GS-4 salary or below is far higher than that
which the FEHBP provides to federal employees, as a percent of premium.
Simultaneously, although the Act requires participants to pay premiums according to
their incomes, the subsidized program in the exchange will allow these federal
employees to pay a much lower percentage of their incomes for family health coverage
than even the cheapest of FEHBP plans.
However, the Affordable Care Act also includes provisions that are damaging to federal
employees. The most punitive will be the 40 percent excise tax on “high cost” or
“Cadillac” plans that will make FEHBP far less affordable for many federal employees
and retirees than it already is. Most disturbing is the fact that this tax will fall on many
FEHBP plans whose high costs are not at all a reflection of a rich benefit package. In
fact, the highest cost plans in FEHBP are not those with the most comprehensive
benefits. The highest cost plans are those that exploit FEHBP’s structural weaknesses
by encouraging those with the highest health risks to congregate, and thus their costs
reflect the risk group rather than the actuarial value of the benefits offered..
Additionally, many FEHBP plans become high cost because of their political power and
the Office of Personnel’s long history of exempting them from cost accounting
standards, and acceding to their demands for large annual premium increases.
FEHBP contracts are fixed price re-determinable type contracts with retrospective price
redetermination. This means that even as the insurance companies receive only a fixed
amount per contract year per “covered life”, they are allowed to track their costs
internally until the end of the year. The following year, they can claim these costs and
recoup any amount they say exceeded their projections from the previous year. They
are guaranteed a minimum, fixed profit each year regardless of their performance or the
amount of claims they pay... The cost “estimates” on which they base their premium
11
demands are a combination of what they report as the prior year’s experience plus
projections for coming year plus their minimum guaranteed profit. As is plain, there is
no ability for federal employees to alter the “high cost” of these plans. It is in the
FEHBP’s insurance companies’ interests to keep costs and profits high, and benefits
low. And to subject the result of this inefficient system, one that propels FEHBP
premiums ever-upward without regard to affordability or without any meaningful
expansion of benefits to a ‘Cadillac” tax just adds insult to injury.
The excise tax is a heavily regressive tax on federal workers, especially those whose
incomes are too high to be eligible for the exchange subsidies but are too low to afford
employee premiums in excess of $3,000 per year. While the 40 percent tax is levied on
the insurance company and is paid on incremental costs over $10,200 for individuals
and $27,500 for families, there are already FEHBP HMOs in New York, California, New
Jersey and Delaware whose 2011 rates meet the 2018 thresholds.
The Deficit Commission’s Proposal to Dismantle FEHBP
The language in report of the President’s National Commission on Fiscal Responsibility
calls for “transforming the Federal Employees Health Benefits Program (FEHBP) into a
defined contribution premium support plan that offers federal employees a fixed subsidy
that grows by no more than GDP plus 1 percent each year.”
What this means is that instead of paying a percentage of average premiums charged
by the insurance companies, as is currently the case, the government would provide a
fixed amount of cash each year that employees could use to buy insurance on their
own. Under the existing statutory system, if premiums go up by 10 percent, the
government’s contribution goes up by around 10 percent. The FEHBP financing
formula requires the government to pay 72 percent of the weighted average premium,
but no more than 75 percent of any given plan’s premium. Under the Commission
proposal, the government’s “defined contribution” or voucher would go up by an amount
totally unrelated to the rise in premiums. For example, between 2010 and 2011,
FEHBP premiums went up by an average of 7.2 percent per year, and so did the
government’s contribution. If the voucher proposal would have been in effect, the
government’s “contribution” or voucher would have gone up by GDP + 1%. Last year’s
GDP growth was 2.5%. Adding an additional percentage point to that and the voucher
would have risen by 3.5%.
12
Current FEHBP formula:
2010 BCBS Standard Option Family: $14,588.60 per year total, government pays
$9,777.04 and the employee pays $4,811.56.
2011 BCBS Standard Option Family: $15,682.68 per year total, government pays
$10,503.48 and the employee pays $5,179.20.
2010-2011 total premium increase was 7.5%. The government payment went up by
7.4%, and the employee premium went up by 7.6%.
Deficit Commission formula:
Start with 2010 BCBS Standard Option Annual Family Premium to set voucher amount
at $9,777.04
Adjust this amount by GDP + 1 percent or 3.5%: $9,777.04 X 1.035 = $10,119.23
The difference in government support between the two approaches in just one year
would have been $384.25 or a 3.8% cut to federal employees. The amount of the cut
would grow annually, as health insurance premiums always rise by more than GDP + 1
percent. Employees would have to pay the difference between the rise in premium and
the rise in the voucher if they wanted to keep the same plan or level of benefits.
When calculating the likely effect of this proposal, it is important to note that GDP does
not always increase: In the most recent Great Recession of 2008-2009, GDP dropped
by 3.8 percent.2 During that period, FEHBP premiums continued to rise: by an average
of 2.9 percent in 2008, and 8 percent in 2009, when the recession was at its worst.
Under this proposal, the government’s voucher would have declined, even as premiums
soared.
The effect of moving to a voucher would be cumulative, because each year’s voucher
amount would be calculated on the basis of the previous year. The following chart
projects on the likely impact, using current data from Blue Cross/Blue Shield’s Standard
Option family plan. It assumes annual GDP growth of 2.7 percent (which has been the
average rate from 1973 to the present), and FEHBP premium growth of 7 percent
(which has been the average since 2000). The projections assume the voucher
adjustment formula recommended by the deficit commission, GDP growth plus one
percent, or 3.7 percent annually.
2
In 2001, GDP fell by 0.3%. In 1990-1991, GDP fell by 1.3%. In 1981-1982, GDP fell by 2.9%. And in 1973-1075,
GDP fell by 3.1%.
13
Current Law
Total Premium
Govt. Share
Employee Share
Employee %
2011
$15,683
$10,503
$5,180
33%
2015
$20,557
$13,767
$6,790
33%
2020
$28,833
$19,309
$9,523
33%
2025
$40,439
$27,082
$13,357
33%
2030
$56,718
$37,984
$18,734
33%
Voucher Plan
Total Premium
Govt. Share
Employee Share
Employee %
$15,683
$10,503
$5,180
33%
$20,557
$12,146
$8,411
41%
$28,833
$14,565
$14,267
49%
$40,439
$17,467
$22,972
57%
$56,718
$20,946
$35,772
63%
Employee Dollar Loss
Cumulative @ 5 year
intervals
$0
($3,852) ($20,754) ($58,250) ($127,375)
Assumptions: Annual premium growth equals 7%., Annual GDP + 1 = 3.7%
The chart shows that in just five years, federal employees would pay $3,852 more than
under the current formula. The cumulative cost to switching from the current formula to
a voucher formula would cost employees an additional $20,754 over ten years, $58,250
over 15 years, and a whopping $127,375 over 20 years. Over the 20-year period, the
government’s share would go from 67% to 37% of premiums. After the two-year pay
freeze for 2011-2012, and modest pay raises in 2013, 2014, and 2015, the
government’s voucher would cover just 59 percent of the likely BC/BS family premium.
Employees’ dollar costs would go up by 62 percent in just the five years between 2011
and 2015.
This proposal originated in a Heritage Foundation “backgrounder,” published in 2001
(http://www.heritage.org/research/reports/2001/11/how-washington-can-improve-healthcare-coverage). The Heritage piece criticizes FEHBP’s “artificial restrictions on plan
options, including less expensive plans” and recommends getting rid of all legally
“mandated benefits,” removing the 75 percent cap on the government’s contribution to a
14
plan, and allowing rollovers of any unspent funds. To make matters worse, Heritage
recommended allowing plans selling to federal employees (under the label of FEHBP,
however unrecognizable it might become) to charge different premiums to different
individuals, based upon age or health risk. Differential premiums combined with the
voucher approach would spell disaster for federal employees, no matter what their age
or health status.
Why did the deficit commission propose this dramatic change? The proposal is
presented as a “pilot program” in health care vouchering. The Commissioners write that
they hope to use federal employees as guinea pigs to see what happens if you de-link
the government’s financing of health care from actual health care costs. If they like
what happens to federal employees under the voucher plan, they would advocate
extending the same approach for Medicare. Following the description of turning FEHBP
into a voucher, they say many on the commission want to “offer seniors a fixed subsidy,
adjusted by geographic area and by individual health risk) to purchase health coverage
from competing insurers.” They go on to say that “if this type of premium support model
successfully holds costs without hindering quality of care in FEHBP”, they want to apply
it to Medicare. Of course it will hold down costs only for the government, not for federal
workers or the elderly, but the commission’s only objective was to reduce government
spending and impoverish workers.
15
Federal Retirement
Introduction
President Obama’s National Commission on Fiscal Responsibility and Reform released
its recommendations in December 2010. For federal employees, some of the most
damaging of the Commission’s proposals have to do with retirement benefits. In spite of
the commission’s failure to achieve the supermajority support it required for
Congressional consideration of its package of cuts, it is likely that some or all of these
proposals will be introduced as separate pieces of legislation in the 112th Congress.
Although they may be put forward as deficit-cutting measures, the primary rationale
offered by their advocates is to encourage the federal government to join other
employers in lowering the pay and benefits of America’s working and middle class
families, and erasing a previous era’s hard-won improvements in living standards.
The proposed cuts to federal retirement include:





Changing the formula for calculating annuities,
Shifting far more of the cost of funding the system on to employees,
Reducing COLAs for FERS and CSRS retirees,
Reducing the government’s share of FEHBP premiums for retirees,
Raising the retirement age for Social Security
The federal retirement systems play no role whatsoever in the creation of the deficit,
and reducing benefits to federal workers would have no positive effect on the budget or
the economy. These proposals have no justification other than to scapegoat federal
employees and retirees for an economic crisis they had no part in creating. As such,
AFGE will urge lawmakers to reject all of these attempts to undermine the statutory
retirement promises on which federal employees rely.
Changing the Formula for Calculating Annuities
The President’s commission proposed to change the formula for calculating federal
pensions so that they would be based on a worker’s “highest 5” years’ average salary
instead of the current “highest 3” years’ average salary.
This change would lower benefits by about three to five percent per year for each
retiree. A federal employee who earns $40,000 at the end of a 25 year career would
lose out on about $14,351. A 47-year-old who earns $50,000 and has 20 years in so far
would lose $24,672 in retirement benefits under this plan. See:
http://theycutyoupay.afge.org to calculate how large a cut in benefits this change would
produce for federal workers at different ages, salaries, and years of service. Overall,
16
this change in formula would reduce federal employees’ annuities by three to five
percent a year for as long as they live.
Shifting the Cost of Funding FERS on to Employees
The President’s commission not only wants to cut federal annuities by lowering the
salary basis on which they are calculated, they also want to make federal employees
pay much more of the cost of funding the annuities. The commission’s proposal comes
straight from a think tank called the Third Way that wants to exploit the fact that some
private firms have reduced or eliminated pensions for their employees by urging the
federal government to follow suit. The Third Way argues that FERS employees should
pay an additional 7% of their salaries into the retirement system, which would increase
the total retirement funding obligation of employees up to a range of 14% to 17% of
salary.
The FERS system is fully funded now, so this is not a proposal to address a funding
problem, it is not an attempt to shore up the Trust Fund from which benefits are paid.
Rather, it is a straight cut to federal employee compensation meant solely to reduce
federal employee compensation. Since this cut would come from the “defined benefit”
element of FERS, it is not voluntary. Each federal employee would experience a salary
cut of 7% a year.
Coupled with the proposed change in the annuity formula basis from “high 3” to “high 5”,
this would mean federal employees would pay an additional 7% of their salaries and in
return, receive retirement benefits that would be 3% to 5% lower than what the current
generation will receive. This punitive cut is entirely without justification and will be
vigorously opposed by AFGE.
Reducing Cost of Living Adjustments for FERS and CSRS Retirees
The President’s commission also wants to substitute a new, inferior measure of inflation
called the “chained” Consumer Price Index (CPI) in order to lower COLAs for federal
retirees. This proposal would hit FERS retirees twice, because the measure would
reduce COLAs for both federal annuitants and Social Security recipients.
The so-called “chained CPI” is a highly controversial method for lowering the official
measure of inflation. The current CPI measures increases in the prices of the goods
and services the typical household buys. The “chained” CPI says if the price of
something goes up, instead of counting that increase, substitute the price of another
good or service whose price either stayed the same or went up by less. For example, if
the price of beef went up, the “chained” CPI would not include that price increase in its
calculation. Instead, it would assume that people would be just as well off if they
substituted a lower-priced animal protein in their market basket. The chained CPI
17
literally takes the inflation out of the formula for measuring inflation. This method “cooks
the books” to pretend inflation is lower than it is, thereby depriving annuitants and other
retirees of the inflation protection that cost of living adjustments are meant to provide.
Reducing the Government’s Share of FEHBP Premiums for Retirees
The President’s Commission suggests reducing government support for federal retirees
who participate in FEHBP, but doesn’t specify the size of the reduction. This proposal is
also presented as an effort to follow the private sector in the race to the bottom. While it
is true that many private firms have broken promises to employees to provide health
insurance support in retirement, that is behavior that a Presidential commission should
deplore, not seek to emulate.
There are good ways to save money by reforming the FEHBP without taking away
benefits from federal retirees, all of whom were promised that the government’s share of
their health insurance costs in retirement would continue on par with those still in the
federal workforce. FEHBP is an inefficient and poorly structured program with high
overhead costs, and high profits guaranteed to the health insurance plans that
participate. OPM has also refused to take advantage of rebates for prescription drug
costs available to employers that provide such coverage to their retirees.
If the Commission wants to save money on FEHBP, there are far better ways than to
renege on the promises that the government has made to its workforce and retirees to
continue full FEHBP coverage into retirement.
Raising the Retirement Age for Social Security
The President’s Commission suggests gradually raising the age for eligibility for full
Social Security benefits in retirement from 67 to 69. The age for early eligibility with
reduced benefits would rise from 62 to 64. This cut in Social Security benefits would
disproportionately affect minorities and those in jobs that are physically demanding.
Today, 25% of all workers age 60 and 61 report a health condition that limits their ability
to work, yet this proposal would require then to work almost a decade beyond this age
for full benefit eligibility. Although the Commission says it would support a “hardship”
exemption for some workers in particularly physically-demanding occupations, it would
not cover all workers with health problems that limit their ability to continue working into
old age.
Further, the increases in life expectancy that the Commission uses to justify this
proposal are hugely correlated with income. According to data from the Social Security
Administration, the life expectancy of men in the bottom half of the income distribution
has risen by just 1.1 years between 1982 and 2006, while those in the top half
experienced a 6 year increased in longevity. During this period, the age for eligibility for
18
all workers has risen by 8 months, but the President’s Commission wants to make this
problem worse. A hardship exemption will not apply to half of all workers, and half of all
workers will have already had their increase in life expectancy accounted for when the
full benefit eligibility age rises to 67 by 2027.
Federal Retirement Benefits are Comparable to Private Sector Benefits
The most comprehensive study comparing retirement benefits under the FERS and
retirement benefits provided to employees in medium and large firms in the U.S. was
prepared by the Social Security Administration’s Office of Policy
(http://www.ssa.gov/policy/docs/ssb/v65n1/v65n1p17.html). This study did not compare
federal retirement benefits to those at firms that provided no retirement benefits, and it
did not compare federal retirement benefits to firms that provide little or no employer
match to a 401 (k) plan, even though all of these practices are common in the private
sector. Instead, it compared “apples to apples,” i.e. it compared FERS, which includes
a defined benefit, a 401 (k) –type of defined contribution with a partial employer match
for employee savings, and coverage under Social Security. The study used data from
the Bureau of Labor Statistics and the OPM, and provided calculations for low, medium,
high, and “maximum” earners. It found unequivocally that the FERS basic pension –
the defined benefit that is the target of those who support cuts – replaces about 36
percent of pre-retirement earnings, while private sector basic pension benefits replace
47.3 percent of a retiree’s final salary. Even when the basic pension is added to the
Thrift Savings Plan (TSP) and Social Security, FERS comes up short compared to
private sector plans, replacing a smaller percentage of pre-retirement salary as
compared to private plans with the same components. When Social Security benefits
are included in the measure of the “replacement rates” for both FERS and private sector
plans, lower earners do better than higher earners because of the progressive nature of
Social Security benefits. Nonetheless, the data are clear and consistent: FERS is less
generous than the retirement plans in the BLS dataset for medium and large private
firms that offer employer-sponsored plans.
Conclusion
These facts must remain at the forefront whenever the proposals to cut federal
retirement benefits are put forth. Cutting federal retirement benefits does absolutely
nothing to affect the budget deficit, as the federal retirement systems are fully
funded. The federal government’s policy with regard to compensating its workforce has
always been comparability with large and medium-sized private firms. This should
remain the government’s policy, and all attempts to bring federal pay and benefits down
to the lowest level should be vigorously opposed.
19
Effective Representation of Federal Employees
Introduction
As part of a systematic attack on working and middle class Americans, some have
advocated cutting the salaries and benefits of those who serve the public as employees
of the federal government. These are the individuals who keep the government
functioning through times of political crisis or deadlock. They are the people who get
the Social Security checks out on time, ensure a safe food supply, go after those who
pollute our water and air, and care for our wounded veterans, but they have been
unfairly painted as the cause of our country’s economic troubles. Those who make
these attacks do so to distract the American people from our unfair and regressive tax
system and corporate welfare state that led to the Great Recession. Their ultimate
target is the very government programs that serve the needs of the people and protect
the American Dream.
Standing in their way are the democratically elected unions representing these Federal
workers. They know that they must silence our voice in order to achieve their goals.
This is the motivation behind the latest attempt to prevent effective union representation
by attacking the use of official time by employees. Use of reasonable amounts of
official time has been supported by government officials of both political parties for
some 50 years. AFGE will strongly oppose any proposal that would weaken federal
employee unions by curtailing, restricting, or eliminating the reasonable and judicious
use of official time. Specifically, AFGE opposes H.R. 122, introduced by Rep. Phil
Gingrey (R-GA), which would eliminate official time altogether.
Background
By law, federal employee unions are required to provide representation for all
employees in their collective bargaining units, even those who don't pay dues. Federal
employee unions are also forbidden from collecting any fair-share payments or fees
from non-dues paying members for the services to which they are legally entitled.
In exchange for being saddled with the responsibility of providing services to those who
pay as well as those who refuse to pay, the Civil Service Reform Act of 1978 allows
federal employee unions to bargain with agencies over official time. Under the law,
federal employees who serve as union representatives are permitted to use official time
to engage in negotiations and perform representational activities while on duty status.
Legally permitted representational activities include:


Creating fair promotion procedures that require that selections be based on
merit, so as to allow employees to advance their careers;
Establishing flexible work hours that enhance agencies’ service to the public
while allowing employees some control over their schedules;
20





Setting procedures that protect employees from on-the-job hazards, such as
those arising from working with dangerous chemicals and munitions;
Enforcing protections from unlawful discrimination in employment;
Developing systems to allow workers to perform their duties from alternative
sites, thus increasing the effectiveness and efficiency of government;
Participating in improvement of work processes;
Providing workers with a voice in determining their working conditions.
By law, use of official time is limited to time spent in negotiations for a collective
bargaining agreement, and other representational activities authorized by statute. The
law provides that the amount of time that may be used is limited to that which the labor
organization and employing agency agree is reasonable, necessary, and in the public
interest. As pointed out in a Congressional Research Service Report, “(a)ny activities
performed by an employee relating to the internal business of the labor organization
must be performed while in a non-duty status.
Activities which may not be conducted on official time include:




solicitation of membership
internal union meetings
elections of officers
any partisan political activities
Because the pay, benefits, and job security for federal employees are established
through the legislative process, the Congress recognized that federal employee unions
would need to communicate with lawmakers about these key terms and conditions of
employment. Consequently, the law permits the use of official time for union
representatives to deal directly with Members of Congress.
The right to use official time to communicate with Members of Congress is
well-established but strictly limited. First of all, the use of official time for this purpose
and then the extent to which it can be used must be negotiated with management. In
addition, official time may be used only to represent federal employees on those issues
directly affecting bargaining unit employees, like jobs, pay, and benefits. It cannot be
used on any other issues--whether school prayer, term limits, or flag desecration.
To ensure its continued reasonable and judicious use, all federal agencies track basic
information on official time, and submit it annually to the Office of Personnel
Management (OPM), which then compiles a government-wide report on the amount of
official time used by agencies. From 2004 through 2008, the use of official time
government-wide decreased from an average of 3.7 to 2.6 hours per bargaining unit
employee. Between 2007 and 2008, official time decreased by 3.3%.
21
Official Time Makes the Government More Efficient and More Effective
Through official time, union representatives are able to work together with federal
managers to use their time, talent, and resources to make our government even better.
Gains in quality, productivity, and efficiency--year after year, in department after
department--simply would not have been possible without the reasonable and sound
use of official time.
Private industry has known for years that a healthy and effective relationship between
labor and management improves customer service and is often the key to survival in a
competitive market. The same is true in the federal government. No effort to improve
governmental performance--whether it's called reinvention, restructuring, or
reorganizing--will thrive in the long haul if labor and management maintain an armslength, adversarial relationship. In an era of downsizing and tight budgets, it is essential
for management and labor to develop a stable and productive working relationship.
Union representatives and managers have used official time to transform the
labor-management relationship from an adversarial stand-off into a robust alliance. And
that just makes sense. If workers and managers are really communicating, workplace
problems that would otherwise escalate into costly litigation can be dealt with promptly
and more informally.
Official time under labor-management partnerships or forums is used to bring closure to
workplace disputes between the agency and an employee or group of employees.
Those disputes would otherwise be funneled to more expensive, more formal
procedures – the agency’s own administrative grievance procedures, EEOC complaints,
appeals to the Merit Systems Protection Board, and federal court litigation.
Healthier Labor-Management Relations in the Federal Government Also Produce
Cost Savings in Reduced Administrative Expenses
Union representatives use official time for joint labor-management activities that
address operational mission-enabling issues in the agencies. Official time allows
activities such as designing and delivering joint training of employees on work-related
subjects; and introduction of new programs and work methods that are initiated by the
agency or by the union. As examples, such changes may be technical training of health
care providers in the Department of Veterans Affairs; or, introduction of data-driven food
inspection in the Food Safety and Inspection Service.
Union officials use official time for routine and unusual problem-solving of emergent and
chronic workplace issues. For example, union representatives use official time when
they participate in agency health and safety programs operated under the Occupational
Safety and Health Administration (OSHA). Such programs emphasize the importance of
effective safety and health management systems in the prevention and control of
workplace injuries and illnesses.
22
Official time is also used by union representatives participating in programs such as
LEAN and Six Sigma, labor-management collaborative efforts which focus on improving
quality of products as well as procedural efficiencies.
Currently, union representatives are participating on official time to work with the
Department of Defense to develop a department wide performance management and
recognition system and accelerate and improve hiring practices within the department.
Conclusion
AFGE strongly opposes any proposals to erode the rights of union representatives to
use official time to represent both dues and non-dues paying members of collective
bargaining units. Official time under the Federal Service Labor-Management Relations
Statute is a longstanding, necessary tool that gives agencies and their employees the
means to expeditiously and effectively utilize employee input into mission-related
challenges of the agency, as well as to bring closure to conflicts that arise in all
workplaces. It has enjoyed bipartisan support for decades. Overseen by the agencies
themselves on a day-to-day basis and by the Office of Personnel Management in an
aggregated way, official time is used as provided by law, and only for the purposes
specified in statute.
23
Back to the Future: Arbitrary Cuts in Civil Servants
Overview
It would be hard to find even a “moment of truth” in the final report served up by the
Deficit Commission’s co-chairs on issues related to federal civil servants, particularly
with respect to its insistence that the federal civil service be arbitrarily reduced by
200,000 federal employees, or 10%, by 2015.3 This recommendation, which was one
of many in a package that failed to receive sufficient bipartisan support, may leave
federal employees with a feeling of déjà vu all over again, given that the Clinton
Administration, pursuant to its now infamous Federal Workforce Restructuring Act,
reduced the federal civil service by 272,000 employees, or slightly more than 10%.4
Unable to fulfill their legal mandates with significantly fewer federal employees,
agencies during the 1990’s often simply privatized the work that had formerly been
performed by reliable and experienced civil servants, usually at significantly higher
costs. Agencies lost critical in-house capacities, eventually inspiring concern that
arbitrary in-house downsizing had left the federal government with a human capital
deficit, or even a “human capital crisis”, at the dawn of the 21st century. Outside audits
reported that, on a widespread basis, contractors had been given functions that by law
and regulation should always be performed by federal employees because of their
sensitivity and importance.
Finally, in the latter part of the Bush Administration, Congress, on a bipartisan basis,
passed several important reforms to address the problems caused by downsizing-driven
privatization, including laws that
3
“1.10.3 Impose a three-year pay freeze on federal workers and Defense Department civilians. Out of
duty and patriotism, hardworking federal employees provide a great service to this country. But in a
time of budget shortfalls, all levels of government must trim back. In the recent recession, millions of
private sector and state and municipal employees had their wages frozen or cut back, and millions more
lost their jobs altogether. In contrast, federal workers’ wages increase annually due to automatic
formulas in law, providing them with cost-of-living-adjustments totaling more than five percent in the
last two years. This proposal would institute a three-year government-wide freeze on federal pay at
every government agency, including the Department of Defense civilian workforce. This proposal will
save $20.4 billion in 2015.” The Moment of Truth: Report of the National Commission on Fiscal
Responsibility and Reform, page 27 (December 2010).
4
The Federal Workforce Restructuring Act of 1994 (P.L. 103-226). The Clinton Administration, in its
“History of the National Partnership for Reinventing Government: Accomplishments, 1993-2000”,
ultimately claimed that the federal workforce was reduced by 426,200 positions between January 1993
and September 2000.
24
1. prevent work from being given to contractors without first determining whether
such conversions would be in the best interest of taxpayers;
2. assign the Office of Management and Budget (OMB) to propose a stronger
definition of “inherently governmental” to ensure that important and sensitive
functions are actually performed by federal employees;
3. require agencies to compile inventories of their service contracts so that they
could identify which ones cost too much or should never have been undertaken;
and
4. direct agencies to develop policies that work performed under contract to be
insourced in certain circumstances.
Enactment of the co-chairs’ rejected recommendation would kill those reforms and
unleash another wave of wasteful and even dangerous, downsizing-driven
privatization—almost as if the long-delayed clean-up of the a giant toxic waste dump
were to be suspended in order to give polluters additional time to deposit even more
poison. The co-chairs’ recommendation for arbitrary cuts in civil servants would not just
lead to more contracting out; it would also scuttle the historic effort to rebalance the
federal government’s workload and thus reduce overreliance on contractors. Indeed,
the co-chairs’ report all but ignores the federal government’s army of service
contractors, which is far larger and far more costly than the federal civil service. 5
If the co-chairs had told the truth even for a moment, they would have acknowledged
that slashing the federal civil service by 200,000 workers—without also explicitly
identifying which programs are to be cut, weakened, or somehow transformed —is
nothing more than burdening the taxpayers with another 200,000 contractors, who are
always less accountable and usually less economical.
Avoiding the Hard Choices
Although the co-chairs style themselves as courageous visionaries who aren’t afraid to
make tough decisions, this particular rejected recommendation is unusually thoughtless
and lazy. Where did the number 200,000 come from? Was it based on workforce
5
"The government knows virtually nothing about its shadow"—the ever-expanding number of politically
well-connected contractors who are taking more and more work from public employees”—wrote Paul
Light, then of the Brookings Institution, in The True Size of Government (1999). "Neither the Office of
Personnel Management nor the Office of Management and Budget has ever counted the full-time
equivalent non-public workforce, let alone analyzed its appropriateness." Light's research indicated that
the contractor workforce was approximately 4 million employees. In contrast, even today, there are
fewer than 2 million executive branch non-postal civil servants.
25
planning? Did it take into account the programs and services that are to be eliminated
or reduced? Was it inspired by the discovery of new processes that somehow allow for
federal services to be provided with significantly fewer civil servants? Or was the
number chosen because it was nice and round—one which might command the
attention of a sound-bite-addicted media and lawmakers who have either forgotten
about or are ignorant of the ruinous downsizing of the 1990’s— which was itself based
on a crude, back-of-the-envelope 10% cut in the federal civil service?
On what basis do the co-chairs believe that the federal civil service can be reduced by
10% without risking, to use their words, “a decline in essential government services”?
Cabinet level agencies have experienced a modest growth of 8% in civil servants since
September 2008. 80% of that increase can be attributed to just four departments—the
Departments of Defense (DoD), Homeland Security (DHS), Justice, and Veterans
Affairs. However, the co-chairs don’t enlighten us as to how their rejected
recommendation won’t jeopardize our national security, our homeland security, our
criminal justice system, and our care for wounded warriors.
If the co-chairs believe that the federal government is overstaffed, then it is incumbent
upon them to identify functions that agencies should no longer perform as well as
explain how other functions can be satisfactorily performed with significantly fewer
federal employees. Rather than accept that challenge, the co-chairs essentially throw
up their hands and demand that federal civil servants continue to perform everything
they are already doing as well as anything that might be asked of them in the future but
to accomplish all of that without 10% of their colleagues. As history shows, in order to
continue to fulfill their statutory mandates, agencies will simply contract out to get the
work done.6
6
As far back as 1991, GAO reported that personnel ceilings were forcing agencies to contract out work
at higher costs. For example, "Few of the DoE contracts for support services we reviewed were awarded
on the basis of comparisons between federal and contract costs. DoE officials said they did not compare
costs since they could not get additional staff to perform the work in-house because of personnel
ceilings...Some DoE support service contracts cost substantially more than would using additional
federal employees for the same work. Eleven of the 12 support service activities for which we
conducted cost comparisons were, on average, 25% more costly." General Accounting Office, ENERGY
MANAGEMENT: Using DoE Employees Can Reduce Costs for Some Support Services (August 1991).
A follow-up GAO report showed how difficult it continues to be to bring work back in-house at the
agency because of personnel ceilings: "(R)egardless of whether DoE's cost comparisons show that
support services can be performed less expensively in-house, personnel ceilings established by OMB for
federal agencies limit the number of authorized DoE positions. Therefore, DoE officials believe there is
little incentive to perform cost comparisons or, ultimately, to convert contract work to in-house
performance, because the work would have to be accommodated within DoE's existing personnel
26
The size of agencies’ civil service workforces should be based on their statutory
mandates—and not on discredited and even outlawed arbitrary personnel constraints
like “man years”, “end strengths”, “full-time equivalent positions”, or “maximum
numbers of employees”. The Congress has repeatedly, and on a bipartisan basis,
rejected the use of in-house personnel ceilings—particularly in DoD, which experienced
most of the downsizing during the Clinton Administration.7
Instead, the Congress has instructed agencies to manage the civil service workforce by
workloads and budgets—if a program must be carried out and if there is sufficient
funding in the budget to pay for that program, then agencies should not be prevented
from recruiting or retaining the federal employees necessary to carry out that program.
It makes no sense to impose civil service headcounts and in-house personnel ceilings
on agencies that require the use contractors rather than federal employees, when there
is both work and funding, particularly when that work is so critical or important that it
should never be privatized or when federal employees are more efficient than
contractors. Replacing civil servants with contractors because of headcounts and
personnel ceilings does not make the federal government smaller or reduce its costs;
indeed, contracting out in such circumstances makes the federal government less
accountable and more costly.
Failing to Learn From History #1: Arbitrarily Downsizing Federal Employees → More
Contractors → Higher Costs
The Federal Workforce Restructuring Act, which required the federal civil service to be
cut by 272,000 federal employees, or by slightly more than 10%, was enacted on March
30, 1994. Supporters of the law insisted that the required in-house downsizing would
not lead to increased outsourcing. In fact, Section 5(g) required the President to “take
ceiling." General Accounting Office, Energy Management: Improving Cost-Effectiveness in DoE's Support
Services Will Be Difficult (March 1993).
7
By law, for example, DoD’s civilian personnel must be managed each fiscal year solely on the basis of
and consistent with (1) the workload required to carry out the functions and activities of the department
and (2) the funds made available to the department for such fiscal year. The management of such
personnel in any fiscal year shall not be subject to any constraint or limitation in terms of man years,
end strength, full-time equivalent positions, or maximum number of employees. (10 U.S.C. 129) By law,
the department must use the least costly form of personnel consistent with military requirements and
consider the advantages of shifting work between its civilian, military, and contractor personnel. (10
U.S.C. 129a) By, law, DoD must give “special consideration” to using civilian employees to perform
functions that have been outsourced without competition, are poorly performed, or include closely
associated with inherently governmental functions. (10 U.S.C. 2463)
27
appropriate action to ensure that there is no increase in the procurement of service
contracts by reason of enactment of” the Federal Workforce Restructuring Act.
However, no such action, appropriate or otherwise, was ever taken. Even before the
calendar year was out, the Clinton Administration was forced to acknowledge that
personnel ceilings forced agency after agency to replace downsized federal employees
with contractors. 8 According to OMB, several agencies--including the Departments of
Agriculture, Health & Human Services, Housing & Urban Development, State,
Education, Treasury, and the Environmental Protection Agency—could have saved
millions of dollars by performing functions directly but had to contract out because of
personnel ceilings.
Noting the pernicious practice at a particular agency, the National Association of Public
Administration reported that "(b)ecause of staff shortages, (the Department of Housing
and Urban Development) HUD has relied on contractor assistance in instances where
considerations of efficiency and economy would favor performance in-house."9
In March 1995, GAO reported "that the personnel ceilings set by OMB frequently have
the effect of encouraging agencies to contract out regardless of the results of cost,
policy, or high-risk studies."10
The DoD Inspector General noted, in a 1995 report, "the goal of downsizing the federal
workforce is widely perceived as placing DoD in a position of having to contract for
services regardless of what is more desirable and cost effective."11
That downsized federal employees were simply being replaced by contractors
eventually became so obvious that the mainstream media noticed. As reported in a
front-page article in The New York Times:
“Even as President Clinton and Congressional Republicans race to take
8
Office of Management and Budget, Summary Report of Agencies’ Service Contracting Practices
(January 1994).
9
National Association of Public Administration, Renewing HUD: A Long-Term Agenda for Effective
Performance (1994).
10
GAO, Government Contractors: An Overview of the Federal Contracting-Out Program (March 29,
1995).
11
GAO, Defense Outsourcing: Challenges Facing DOD As It Attempts to Save Billions in Infrastructure
Costs (GAO/T-NSIAD-97-110).
28
credit for shrinking the Federal payroll, the Government’s costs for
outside, or contract, employees keeps rising…The Government spent
$103 billion in salaries and expenses for its employees in 1995. That is a
very slight decline, about $1 billion, from its payroll costs in 1993 and
1994. But the dollar value of Federal service contracts with private
companies has risen more than 3.5 percent a year since 1993, to $114
billion last year…President Clinton refers frequently to the elimination of
more than 200,000 Federal positions—about 10 percent of the Federal
work force—during his tenure, an indication that “the era of big
government is over”…Most of that decrease has been in civilian jobs at
the Pentagon. But while those jobs have vanished on paper, many of the
responsibilities are being fulfilled by outside contractors…”12
Most downsizing during the 1990’s was imposed on DoD, and most of that downsizing
was in turn imposed on its acquisition workforce, the federal employees responsible for
ensuring that contractors don’t rip off taxpayers. The DoD Inspector General reported in
2000 that taxpayers were paying “increased program costs resulting from contracting for
technical support versus using in-house technical support. Seven of the 14 DoD
acquisition organizations stated that reductions in in-house matrix support personnel
required the organizations to contract for additional services, such as engineering and
logistical analysis, that the Government once would have provided.”
Failing to Learn From History #2: Arbitrarily Downsizing Federal Employees → More
Contractors → Loss of Control of Public Functions to Private Interests
Even after the expiration of the Federal Workforce Restructuring Act, the Bush
Administration continued to replace federal employees without regard to cost or risk,
particularly in DoD and DHS.
In April 2002, the Commercial Activities Panel, a special commission created by
Congress and chaired by the Comptroller General— although deliberately stacked with
a majority of Bush Administration officials and contractor representatives—declared,
unanimously, that “federal sourcing and related policies should avoid arbitrary full-time
equivalent (FTE) or other arbitrary numerical goals. This principle reflects an overall
concern about arbitrary numbers driving sourcing policy or specific sourcing decisions.
The success of government programs should be measured by the results achieved in
terms of providing value to the taxpayer, not the size of the in-house or contractor
workforce. Any FTE or other numerical goals should be based on considered research
and analysis. The use of arbitrary percentage or numerical targets can be
counterproductive.”13
12
“As Payroll Shrinks, Government’s Costs For Contracts Rise”, The New York Times (March 18, 1996).
13
Commercial Activities Panel, Improving the Sourcing Decisions of the Government (April 2002).
29
Nevertheless, DoD’s service contractor workforce grew from 732,000 in FY00 to
1,300,000 in FY06.14 Taxpayer dollars spent on DoD’s service contractors more than
doubled, increasing by $100 billion, during the Bush Administration. According to
budget documents, the number of active duty military personnel and civilian employees
increased from FY2000 to FY2010 by just 2% and 7%, respectively. In early 2010, DHS
discovered that its workforce consisted of 210,000 contractors and just 188,000 federal
employees.15
In 2007, GAO detailed how arbitrary downsizing has resulted in both agencies
contracting out the most important and sensitive functions. From overseeing contractors
to preparing budgets, work that should have been performed for DHS by federal
employees—because it is inherently governmental, closely associated with inherently
governmental functions, or critical—has been given to contractors, thus undermining the
public interest. According to GAO, DHS uses contractors to prepare budgets, develop
policies, support acquisition, develop and interpret regulations, reorganize and plan, and
administer OMB Circular A-76 privatization studies. In outsourcing such work, agency
officials don’t even bother to subject those contractors to extra surveillance, let alone
look for opportunities to insource.16
In 2009, GAO reported after a survey of DoD contracts that all 7 of the proposed
acquisitions for professional, administrative, and management services and more than
75 percent of the 64 related task orders it reviewed required the contractor to provide
services that closely supported inherently governmental functions. Worse,
requirements that such work be subjected to greater scrutiny both before and after any
outsourcing are routinely ignored.17
Although less notorious than DHS and DoD, HUD is another department in which public
functions are increasingly controlled by private interests because of the downsizingdriven privatization initiated by the Federal Workforce Restructuring Act. During the
Clinton Administration, HUD began contracting out contract administration for
approximately 1.2 million units in Multifamily Housing developments.
The first IG report critical of HUD’s use of contractors instead of federal employees
appeared in 1999. In that report, the IG reported that such outsourcing could adversely
14
FY01 and FY06 Department of Defense Reports: Performance of Commercial Activities. Available:
http://competitivesourcing.navy.mil/referenceDocuments/reportsDoD.aspx
15
Department of Homeland Security, Balanced Workforce and Contractor Reliance, p. 3.
16
GAO, Department of Homeland Security: Risk Assessment and Enhanced Oversight Needed to Manage
Reliance on Contractors, GAO-08-142T.
17
GAO, Defense Acquisitions: Further Actions Needed to Address Weaknesses in DoD’s Management of
Professional and Management Support Contracts, GAO-10-39.
30
affect the integrity of the department’s program because contracted services are
typically used to enhance in-house capability, not replace an entire business function;
the cost of the contract would be absorbed by the program, reducing the amount of
funds that could be provided to intended beneficiaries; and HUD’s ability to monitor
contractor performance was questionable.18 In 2010, because of concerns about
increased contractor costs and inappropriate contractor performance of inherently
governmental functions, the IG recommended three options, two of which called for
insourcing all or significant parts of the work and another which called for allowing HUD
employees to formally bid on the work.19
Five facts that should guide efforts to right-size the federal government:
1. The Federal Government Uses Both Civil Servants and Contractors to
Carry Out Programs: The federal executive branch non-postal workforce
consists of fewer than 2 million civil servants, according to the Office of
Personnel Management. The size of the contractor workforce is unknown, but it
has been estimated to be at least two times—perhaps even three times—the size
of the federal civil service. Therefore, any serious effort to right-size the federal
government must look carefully at both civil servants and contractors.
2. If Agencies Are Required to Carry Out Programs But Can’t Use Civil
Servants Because of Personnel Ceilings and Headcounts, They Will
Inevitably Use Contractors Instead: Using civil servants and contractors,
agencies carry out the programs that are established by Congress. If Congress
wants agencies to use significantly fewer civil servants, then Congress must
either eliminate or weaken those programs. As proven by the Federal Workforce
Restructuring Act, if agencies can’t use civil servants to carry out programs, they
will simply contract out those programs, even if such backfilling is prohibited.
3. Using Contractors in Such Circumstances Leads to Increased Costs and
Loss of Public Control: When agencies contract out because of in-house
headcounts and personnel ceilings, it usually leads to higher costs and it can
result in loss of public control over important and sensitive functions. In such
circumstances, it’s not just that there is no public-private competition but rather
that there is no consideration of the cost of in-house performance, period, before
work is contracted out. And as the experience of DoD, DHS, HUD, and other
agencies show, headcounts and personnel ceilings don’t just result in work being
contracted out regardless of cost but, also, as GAO pointed out, regardless of
risk and policy.
18
IG Audit Report #99-PH-163-0002 at pp. 16-17.
19
IG Audit Report #2010-LA-0001 at pp. 16-19.
31
4. Civil Servants Are Best Managed by Workloads and Budgets: If there is
work to be done and money to pay for the work to be done, then an agency
should be allowed to use federal civil servants to get that work done, an
approach which is already required in law in several instances. Whether an
agency should use civil servants depends on cost, policy, and risk. The
imposition of in-house headcounts and personnel ceilings often prevents
agencies from using civil servants when there is work and money to pay for that
work to be done, even when in-house performance is more efficient or required
by law or regulation.
5. Because Civil Servants Are Transparent and Quantifiable, Unlike
Contractors, They Are Uniquely Vulnerable to Headcounts and Personnel
Ceilings: Through the budget process, agencies know what work civil servants
are doing, how many civil servants are doing that work, how much those civil
servants cost, and how well they are performing. Contractors, on the other hand,
are shrouded in secrecy. Although significantly more numerous and more
expensive than civil servants, little is known about contractors—not even how
many of their employees are actually paid for by the taxpayers. Contractors have
always fought efforts to require agencies to inventory their service contracts
because they know that increased visibility would inevitably lead to increased
accountability.
Nevertheless, all agencies are now required to review their service contracts in
order to identify, among other things, service contracts that are too expensive or
poorly performed. However, only DoD has made significant progress, and OMB
was several months late in issuing guidance for the non-DoD agencies. The
federal civil service is transparent and quantifiable, and thus accountable to
taxpayers, while contractors are not. It is because federal civil servants are
accountable to taxpayers—but contractors are not—that federal civil servants are
uniquely vulnerable to the use of personnel ceilings and headcounts.
How to right-size (assuming the actual objective is to achieve savings and
generate efficiencies, as opposed to enrich contractors and smack civil
servants):
Congress has historically demonstrated that it can reduce the number of federal civil
servants, but not that it can reduce the size of the federal government—because
lawmakers’ downsizing efforts don’t include contractors. Agencies have repeatedly
shown that they can cut the size of their civil service workforces; however, they have
been completely unsuccessful in even restraining the growth of their contractors. How
can we avoid undertaking more downsizing that ultimately increases costs to
taxpayers?
32
1. Make Tough Choices: Instead of simply telling agencies to do more with less,
specifically 200,000 civil servants, Congress should either identify programs for
abolition and reduction in scope or demonstrate how particular programs can be
transformed so that significantly fewer civil servants and / or contractors are
required. Specific right-sizing can work, but more “fill-in-the-blank” right-sizing
won’t work.
2. Avoid Headcounts or Personnel Ceilings--on Contractors or Civil Servants:
The Deficit Commission co-chairs, in their November 2010 draft proposal, called
for the elimination of “250,000 non-defense service and staff augmentee
contactors”20 and doubling “Secretary Gates’ cuts to defense contracting” 21.
These contractor cuts are technically incorporated by reference into the cochairs’ failed final package of recommendations. That the co-chairs explicitly
included federal employee cuts in their final package, but left out their own
contractor cuts, is yet another reason to question their judgment and fairness.
Nevertheless, AFGE opposes headcounts on contractors as well as on federal
employees, for many of the same reasons.
3. Use Inventories to Identify Contracts That Are Superfluous, Cost Too Much
or Are Poorly Performed: Instead of headcounts, agencies should use their
service contractor inventories to identify contracts that ill serve taxpayers
because they are duplicative, over-budget, or just aren’t working. These
inventories can make contractors as accountable to agencies as federal
employees already are. Unlike headcounts, which could adversely impact good
contractors and bad contractors alike, inventories allow agencies to preserve
contracts that are in the best interests of taxpayers and either eliminate or correct
those contracts that aren’t.
20
21
The Moment of Truth: Report of the National Commission on Fiscal Responsibility and Reform, p. 2.
Ibid., p. 17.
33
Sourcing: Complying With the Law
Summary:
1. ENFORCE PROHIBITIONS AGAINST DIRECT CONVERSIONS: Consistent
with the law, no work last performed by federal employees should be contracted
out without first conducting a full and fair public-private competition.
2. INSIST THAT INHERENTLY GOVERNMENTAL / CLOSELY ASSOCIATED
WITH INHERENTLY GOVERNMENTAL / CRITICAL WORK BE PERFORMED
BY FEDERAL EMPLOYEES: Ensure that functions that are inherently
governmental, closely related to inherently governmental functions, or critical are
performed by federal employees— and insource such work if it has been wrongly
contracted out.
3. THROUGH INSOURCING, REQUIRE AGENCIES TO GIVE FEDERAL
EMPLOYEES OPPORTUNITIES TO PERFORM NEW AND OUTSOURCED
WORK: Consistent with the law, agencies should insource work that is closely
associated with inherently governmental functions as well as functions that were
contracted out without competition or are being poorly performed.
4. COMPILE CONTRACTOR INVENTORIES: Consistent with the law, agencies
should compile inventories of their service contracts so that we know, among
other things, how much contractors cost, how many employees are performing
each contract, and how well they are performing.
5. EXTEND THE GOVERNMENT-WIDE SUSPENSION AGAINST STARTING UP
ANY NEW OMB CIRCULAR A-76 STUDIES: Extend the suspension on the use
of the OMB Circular A-76 privatization process until much-needed reforms have
been implemented and functions performed by contractors, including commercial
functions, are being targeted for insourcing.
6. DON’T POLITICIZE THE PROCUREMENT PROCESS: Oppose schemes that
would direct contracting officers to steer contracts to certain contractors based on
their commitments to “labor-friendliness”; instead, favor the establishment of
standards for pay, benefits, and collective bargaining status for contractor
employees that all contractors would be required to meet.
34
1. ENFORCE PROHIBITIONS AGAINST DIRECT CONVERSIONS
Despite the extensive use of the Office of Management and Budget (OMB) Circular A76 privatization process (and the resulting proof of the superiority of in-house
workforces), much work is still contracted out without any public-private competition,
i.e., without any proof that giving work to contractors is better for taxpayers or better
serves those Americans who depend on the federal government for important work.
The Congress, on a bipartisan basis, has, repeatedly, prohibited agencies from
perpetrating, regardless of the number of federal employees affected, “direct
conversions”—the term used to describe instances in which agencies give work
performed by federal employees to contractors without first conducting full cost
comparisons. However, OMB has issued no guidance to agencies to implement the
new prohibitions and agencies continue to perpetrate direct conversions.
2. INSIST THAT INHERENTLY GOVERNMENTAL / CLOSELY ASSOCIATED
WITH INHERENTLY GOVERNMENTAL / CRITICAL WORK SHOULD BE
PERFORMED BY FEDERAL EMPLOYEES
The FY09 Defense Authorization Act required OMB to develop a single governmentwide definition of “inherently governmental”. It is crucial that OMB’s proposed
redefinition correct longstanding problems that have resulted in the outsourcing of
functions that should have been reserved for federal employee performance, including
evaluation of contractors’ proposals and performance, preparation of budgets,
development of policies, and interpretation of regulations.22 In contracting out such
22
These are the principles for which AFGE has advocated on the redefinition of inherently governmental.
a. The new definition should reject targeting “commercial” functions for outsourcing. The
redefinition should be explicit in rejecting the pernicious notion that infected sourcing
policy, particularly during the previous Administration, that commercial functions
performed by federal employees should be targeted for outsourcing. Given the superior
accountability and flexibility of in-house performance, the resistance of contractors to
effective oversight, and the costs and controversies associated with the contracting out
process, the new definition should make it clear that internal reengineering is the
approach most likely to generate efficiencies with respect to non-inherently governmental
functions performed by federal employees.
b. The new definition should reduce confusion and uncertainty by expanding the very
narrow definition of inherently governmental currently in use. The new definition should
correct the fundamental problem in the current definition that has caused so much
confusion and uncertainty in determining which functions should be reserved for federal
employee performance: because the current definition of inherently governmental is so
impractically narrow, managers have been forced to rely on other, weaker designations—
closely associated with inherently governmental, critical, core, etc.—to protect from
outsourcing pressures functions that may not meet the statutory definition but should still
be performed in-house.
c.
The new definition should be clear enough to withstand the politics and corruption that
have led to so much contracting out of functions that should be performed by federal
employees; it should reflect the real-life lessons we have all learned over the last sixteen
years. Again and again, because of contractors’ immense political influence, agencies
35
have served contractors, rather than the reverse. Instead of regarding contractors as an
industry to be regulated, too many acquisition executives see contractors as their
partners or even as sources of post-civil service employment.
While the existing narrow definition of inherently governmental has resulted in unhelpful
confusion and uncertainty, the outsourcing of functions that should only be performed by
federal employees is the inevitable consequence of politics, influence-peddling, and
outright corruption. The new definition of inherently governmental should be sufficiently
clear and forthright to withstand those relentless pressures, dispensing with the usual
arcane tests that invite more subjectivity and gamesmanship in favor of rebuttable
presumptions that closely associated with inherently governmental and critical functions
should be performed by federal employees. Given that it has been deliberate policy to
drive as many functions into the private sector as possible, regardless of their nature, and
that the loss of control over governmental functions is not a potential problem but a real
and serious problem, there is no reason not to have such presumptions.
d. The new definition should take into account the realities of the federal workplace in which
managers lack the time and expertise to adequately review recommendations and
exercises of discretion by contractors. The new definition should reserve for federal
employee performance exercises of discretionary authority or the formulation of
recommendations that contribute significantly to agencies’ final decisions as well as
exercises of discretionary authority or formulations of recommendations that are not
specifically reviewed and approved by supervisors that contribute to agencies’ final
decisions.
Federal employee managers, in agency after agency, approve recommendations
prepared by contractors, often with insufficient time or expertise to adequately scrutinize
those recommendations. In other words, contractors’ recommendations are, effectively,
final decisions. Across the federal government, functions performed by federal
employees have been considered to be commercial because they result in
recommendations, rather than final decisions--even though supervisors’ decisions are
little more than rubber-stamps of employees’ recommendations because only a fraction
of those employee recommendations are ever reviewed, and far fewer still rejected or
overturned. The new definition should look at the way discretion is actually exercised
and recommendations are offered before final decisions are rendered, rather than
emphasizing form over substance—i.e., functions are automatically commercial if
managers sign off on recommendations or approve exercises of discretion.
It is understood that federal employees have longer tenures than their private sector
counterparts, often making them more productive because they have more experience.
And it is often this experience that allows federal employees to more wisely exercise
discretion because they build up extensive knowledge of law, regulation, policy, and
practice. Contractor employees, because their turnover is higher and their ultimate
loyalty is to the contractor, rather than to the agency, don’t have the same opportunity
and motivation to wisely exercise discretion. The new definition’s treatment of discretion
should reflect that reality.
e. The new definition should include strong mechanisms for transparency (i.e., determining
which contracts include functions that are inappropriate for contractor performance) and
36
enforcement (i.e., insourcing functions which should be performed by federal employees),
which are arguably even more important than how inherently governmental is defined.
The new definition should be coupled with the implementation of strong transparency and
enforcement mechanisms. Although the current definition of inherently governmental is
inadequate, most outsourcing of functions that should be reserved for federal employee
performance could have been corrected if agencies had been required to regularly
inventory functions performed by contractors and then promptly insource those functions
if they were inappropriate for contractor performance.
f.
The new definition should be issued and enforced with sufficient force and accountability
to ensure actual compliance—no small concern given the systematic defiance (and
ignorance) of existing guidance against contracting out functions that should be reserved
for federal employee performance. The process by which the term inherently
governmental is redefined should eliminate the widespread culture of defiance and
ignorance in relation to outsourcing of functions that should be performed by federal
employees. Issuance of the new definition in a policy letter guarantees that it will be
ignored, given that contracting offices in some agencies don’t even keep on file copies of
policy letters. Many contracting officers give little regard to rules and guidance not
included in the Federal Acquisition Regulation (FAR). Absent incorporation in the FAR
the redefinition will have little influence over agency sourcing decisions. If the redefinition
is not to be a mere academic exercise, then timetables and milestones must be
established for the review of outstanding contracts and any necessary insourcing.
Agencies should be required to assign responsibility to senior officials for ensuring
transparency and enforcement.
g. The new definition should address the many human capital issues related to protecting
functions that should be reserved for federal employee performance. The new definition
should reflect the intention of the Congress to involve the human capital community to the
same extent as the acquisition community. It is because the acquisition community
during the last seventeen years seized control not just of procurement decisions but of
sourcing decisions generally that so many functions that should be performed by federal
employees have been contracted out. It is not exactly a secret that leaders of the
acquisition community tirelessly advocate for contracting out in order to expand or at
least sustain their bureaucratic empires. Various rationales have been offered to justify
outsourcing, even when it costs more or the work is inappropriate for contractor
performance, including in-house personnel ceilings, problems with the civil service hiring
process, missing skill sets in the in-house workforce, and inadequate federal employee
pay. Some of these rationales reflect perceptions more than reality, while others are
merely excuses. The new definition should be part of a comprehensive strategy that
would forcefully address those rationales, particularly providing managers with budget
authority and authorizations to hire additional in-house staff to perform functions that are
reserved for federal employee performance.
Functions which are not reserved for federal employee performance under any definition
of inherently governmental can be outsourced. Outsourcing during the previous
Administration had a disproportionate effect on women, African American employees,
and veterans. The new definition should ensure that the United States has a federal civil
service that reflects the diversity of the American people. Outsourcing has a vastly
disproportionate impact on lower-level employees. However, many of those lower-level
employees who today perform commercial functions will become the managers of
37
work, according to the Government Accountability Office (GAO), agency officials don’t
even bother to subject those contractors to extra surveillance, let alone look for
opportunities to bring it back in-house.23 It is believed that OMB will issue its proposed
new definition of inherently governmental in early 2011.
3. THROUGH INSOURCING, REQUIRE AGENCIES TO GIVE FEDERAL
EMPLOYEES OPPORTUNITIES TO PERFORM NEW AND OUTSOURCED
WORK
All agencies are now required to develop insourcing policies for new work and
outsourced work, in particular outsourced work that is inherently governmental and
wrongly contracted out, work contracted out without competition and presumably more
expensive than it should be, and work contracted out that is poorly performed.
Nevertheless, insourcing in non-DoD agencies is proceeding slowly. In fact, OMB has
failed to issue guidance that would allow agencies to use insourcing to save money for
the taxpayers by bringing in-house functions solely for cost reasons.
4. COMPILE CONTRACTOR INVENTORIES
Unlike federal employees, contractors have been shrouded in darkness. There is little
that agencies do not know about their civil servants. However, agencies historically
have not bothered to track their contractors. Managers don’t know how much
contractors cost, whether they are performing inherently governmental functions, or how
many employees are paid by the contract. Fortunately, Congress has required that all
agencies develop inventories of their service contracts. These inventories can be used
to reduce costs by identifying contracts that don’t benefit taxpayers or identify functions
that ought to be insourced because contractors are performing functions that should be
reserved for federal employee performance. OMB issued guidance for the
establishment of contractor inventories for the non-DoD agencies in November 2010.
Some elements will not be included in the first round of inventories, which should have
been made available to the public no later than January 30, 2011.
5. EXTEND THE GOVERNMENT-WIDE SUSPENSION AGAINST STARTING UP
ANY NEW OMB CIRCULAR A-76 STUDIES
The FY09 and FY10 Financial Services Appropriations Bills included language that
would prevent new A-76 reviews from being launched by any federal agency, and that
tomorrow. The new definition should ensure that the agency retains the skill and
expertise of such valuable federal employees.
23
Government Accountability Office, DEPARTMENT OF HOMELAND SECURITY: Risk Assessment and
Enhanced Oversight Needed to Manage Reliance on Contractors, GAO-08-142T.
Government
Accountability Office, DEFENSE ACQUISITIONS: Further Actions Needed to Address Weaknesses in
DoD Management of Professional and Management Support Contracts, GAO-10-39.
38
prohibition is still in effect. Until the implementation of the reforms listed below, AFGE
believes that this temporary suspension on new A-76 reviews should be continued:
a) The establishment of a reliable system to track costs and savings from the A76 process that has been implemented, tested, and determined to be accurate
and reliable, over the long-term as well as the short-term.
b) Consistent with the law, the establishment of contractor inventories so that
agencies can track specific contracts as well as contracts generally.
c) Consistent with the law, the development and implementation of plans to
actively insource new and outsourced work, particularly functions that are closely
associated with inherently governmental functions, that were contracted out
without competition, and are being poorly performed.
d) Consistent with the law, the enforcement of government-wide prohibitions
against direct conversions.
e) The development and implementation of a formal internal reengineering
process that could be used instead of the A-76 process.
f) Revision of the rules governing the A-76 process to make it more consistent
with agencies’ missions, more accountable to taxpayers, and more fair to federal
employees.
1) Increase the minimum cost differential to finally take into account the
often significant costs of conducting A-76 studies, including preliminary
planning costs, consultants costs, costs of federal employees diverted
from their actual jobs to work on privatization studies, transition costs,
post-competition review costs, and proportional costs for agencies’
privatization bureaucracies (both in-house and out-house).24
2) Double the minimum cost differential for studies that last longer than 24
months—from the beginning of preliminary planning until the award
decision.25
24
It is accepted in the A-76 circular that it makes little sense to shift work back and forth without at least a
guesstimate that savings will be more than negligible. “The conversion differential precludes conversions
based on marginal estimated savings…” Unfortunately, the conversion differential--the lesser of 10% of
agency labor costs or $10 M, which is added to the non-incumbent provider—captures only “nonquantifiable costs related to a conversion, such as disruption and decreased productivity”. See OMB
Circular A-76, Attachment B.
25
The biggest selling point for the revised A-76 circular was that standard privatization studies were
supposed to last no longer than a year. Of course, OMB insists that a standard competition has not
started until it has been formally announced, even though preliminary planning, the work conducted on an
A-76 study before formal announcement, can last several years. Even excluding preliminary planning A76 studies now routinely take longer 12 months. In fact, OMB reports that the average A-76 study takes
13.6 months to complete. COMPETITIVE SOURCING: Report on Competitive Sourcing Results Fiscal
39
3) Eliminate the arbitrary 12% overhead charge on in-house bids.26
6.
DON’T POLITICIZE THE PROCUREMENT PROCESS
AFGE fought against the Bush Administration’s attempt to politicize the federal
procurement process in order to favor contractors, and AFGE will fight against attempts
to use the source selection process to favor certain contractors in exchange for
commitments to “labor-friendliness”.
AFGE supports efforts to improve the lives of contractor employees that would follow
favorable precedents and build on earlier reforms, including preventing scofflaw
contractors from bidding on new contracts, requiring all contractors to boost pay and
benefits for contractor employees, making it easier for all contractor employees to be
organized, and making the pay and benefits of all contractor employees public
knowledge. Such reforms would benefit all contractor employees, command unanimous
support from the labor movement, and truly put the federal procurement process on a
“high road”.
Unfortunately, there are some who insist on a different sort of “high road” for federal
procurement, one that would allow certain contractors who are deemed labor-friendly or
who merely commit to eventually becoming labor-friendly to receive special political
preferences for federal contracts. Under at least one recent iteration of this proposal,
agencies would outsource to the Department of Labor responsibility for determining the
value of contractors’ special political preferences, based on, among other things, their
pay and benefits. To ensure that agencies actually use the special political preferences
as proponents intend, contracting overseers in all agencies would be able to vary these
labor preferences in specific procurements to ensure they are determinative.
Of course, there would be no need for such special political preferences if all
contractors were held to the same standards. Moreover, all federal contractor
employees would benefit if all contractors were held to the same standards. As even
the proponents of this controversial proposal concede, there are no favorable
Year 2007, May 2008, p. 9. Worse, the length is gradually increasing over time. In other words, the more
the A-76 process is being used, the longer it is taking. The A-76 circular is based on standard
competitions lasting no longer than a year except in unusual circumstances. Clearly, the conversion
differential should be increased to take into account the growing length of A-76 studies.
26
All in-house bids are slapped with an overhead charge, which works out to 12% of personnel costs.
This significant impediment to in-house bids should be eliminated. As the Department of Defense
Inspector General reported about the now infamous A-76 privatization review at the Defense Finance and
Accounting Service, “We do not agree that the standard factor for overhead costs is a fair estimate for
calculating overhead. We believe that DoD must develop a supportable rate or alternative methodologies
that permit activities to compute reasonable overhead cost estimates.” “Public-Private Competition for the
Defense Finance and Accounting Service Military Retired and Annuitant Pay Functions”, Report D-2003056 (March 2003). Neither reform has been undertaken. Consequently, most if not all in-house bids are
unfairly biased against federal employees.
40
precedents, whether at the federal level, the state level, or the local level. Many
jurisdictions try to make procurement more humane, but they don’t use the source
selection process to favor certain contractors.
The use of procurement preferences increases the risk of subjectivity, politics, and
corruption. The Congress, when it was controlled by Republicans, outlawed the use of
the “best value” process in competitions between federal employees and contractors
because of how it would have made those competitions more subjective and political.
Preferences for small and disadvantaged businesses have consistently been abused.
They are fraudulently obtained and they are often used to pass on work to contractors
that don’t have preferences. Of course, under this proposal, the federal government
would be using the procurement process, for the first time, to explicitly favor large
contractors—because those are the firms most capable of qualifying for special political
preferences—at the expense of small contractors. Consequently, the possibility for
waste, fraud, and abuse increases substantially. Indeed, one contractor attorney
suggested that her first advice to clients if this proposal were implemented would be to
set up a modest subsidiary to qualify for the special political preference so that it could
then pass work on that could be performed by other facilities that don’t abide by the
special political preference.
Ultimately, the procurement process is designed to allow federal agencies to efficiently
and expeditiously secure services from the private sector. AFGE is proud to represent
tens of thousands of acquisition personnel, who work under two immutable imperatives:
do it fast (because program officers almost always needs contracts awarded in a hurry)
and do it cheap (because resources are always finite). The cost to the nation when,
say, an uninsured contractor employee’s child is treated in the emergency room is
obviously a valid concern, one that could be addressed through a variety of methods—
from implementing real health care reform to requiring contractors generally to
contribute an appropriate amount towards their employees’ health care costs as a
precondition of bidding—but not through specific federal procurements.
AFGE is also obviously concerned about “high road’s” potential adverse impact on
federal employees and bargaining unit work. The special political preference could be
used in a public-private competition to award work performed by federal employees to a
contractor even when federal employees are more efficient. Moreover, the special
political preference could be used to prevent work from being insourced, even when the
contractor is less efficient. Worse, the special political preference could be used to
directly convert work last performed by federal employees outside of a public-private
competition, i.e., a direct conversion.
41
Transportation Security Administration and
Transportation Security Officers
Rights and an Election at Last!
After nine years of fighting, Transportation Security Officers (TSOs) stand at the
precipice of collective bargaining rights and the election of AFGE as their exclusive
bargaining representative. The Aviation and Transportation Security Act (ATSA)
created the Transportation and Security Administration (TSA) federalizing the duties of
screening passengers and baggage at airports into the TSO position. Although this was
a prime opportunity to establish a highly-trained, decently-paid, and fully-empowered
professional public workforce, TSA management instead used a statutory footnote in
ATSA to create its own management system, devoid of the widely accepted protections
afforded to federal workers in the rest of the government. AFGE has stood with TSOs
as they took the fight for dignity, respect, and a true voice in the workplace to the White
House, the halls of Congress, TSA management, the Federal Courts and the public.
Now, with the decision of the Federal Labor Relations Authority (FLRA) in favor of
AFGE’s petition for a union election and an expected decision to grant collective
bargaining rights, the nation’s 40,000 TSOs are poised to finally achieve the full rights
and protections of other federal workers at the Department of Homeland Security
(DHS).
July 2010 marked the successful confirmation of John Pistole to be the permanent head
of TSA. Despite pressure from anti-union lawmakers in the House and Senate, Pistole
refused to rule out TSO collective bargaining. Although Pistole has been far more
accessible to TSOs than his predecessors, AFGE is increasingly frustrated by the
slowness of the agency to grant TSOs collective bargaining rights and workplace
protections by administrative order even in light of support of TSO rights from DHS
Secretary Janet Napolitano. AFGE calls on Administrator Pistole to grant full collective
bargaining rights and the same Title 5 rights and protections as other workers in DHS
and provide TSOs a true voice at work by ensuring that the FLRA election proceeds
without agency obstruction.
Immediately prior to the Thanksgiving holiday, among the busiest air travel days each
year, AFGE and our TSO members responded to a threatened “opt-out” action by a few
vocal travelers in protest of TSA’s increased use of Advanced Imaging Technology and
enhanced pat-downs. AFGE President John Gage and TSA Local officials from airports
around the country appeared on ABC World News and MSNBC and gave interviews to
numerous large newspapers including USA Today to explain to the flying public what
TSA did not: The security measures were taken in response to a direct threat; TSOs
are security professionals who do not choose the duties they perform, but carry them
out with the mission of keeping air travel safe for the public; and that TSA must do a
better job in explaining its security measures and the role of TSOs to the flying public.
The efforts of AFGE and the conscientious professionalism of TSOs resulted in smooth
travel without security delays over the Thanksgiving holidays and the public’s newfound
42
respect for the complicated, important and too often thankless job TSOs perform every
day.
Background
Collective Bargaining and Title 5 Rights: Distinct Rights that Go Hand-In-Hand
Electing AFGE as the exclusive representative of TSO means that TSOs will have a
formal voice at work that is recognized by TSA and its managers. TSOs will have the
full protection of the law when they face retaliation from hostile supervisors when they
engage in employee representation procedures. TSOs will have the rights of union
representation before the Equal Opportunity Commission, the Disciplinary Review
Board, peer review panels, and in meetings with management and in the courts. The
granting of Title 5 workplace protections by either administrative order or legislation will
ensure that workers are treated fairly, the workplace is safe, and that workers are
protected from retaliation when they blow the whistle on security breaches. The power
of TSA management over TSOs would have remained unchecked but for leverage that
AFGE has been able to exercise at key moments. AFGE’s power is attributable to our
growing membership of over 12,000 TSOs.
During the 11th Congress, Representative Nita Lowey (D-NY), current Homeland
Security Committee Ranking Member Bennie Thompson (D-MS), and Aviation and
Transportation Infrastructure Ranking Member Sheila Jackson Lee (D-TX) introduced
legislation (H.R. 1881) to repeal the ATSA footnote and grant TSOs the same collective
bargaining rights and workplace protections as other federal workers—including those
in DHS. H.R. 1881 was favorably reported by both the House Homeland Security
Committee and the Oversight and Government Reform Committee, but did not receive a
vote on the House floor prior to the adjournment of Congress. In addition, no
companion bill was introduced in the Senate. Despite a less-supportive change in
leadership in the House and fewer supporters in the Senate due to the 2010 elections,
AFGE will continue the fight for legislatively granted collective bargaining rights and
workplace protections because it is the only way to make sure those rights, once given,
cannot be taken away in the future.
TSA Has Repeatedly Failed in its Personnel Policy
Privatization of TSO jobs through the Screening Partnership Program
AFGE calls upon TSA to end the Screening Partnership Program (SPP), a system that
converts the inherently governmental federal screening duties performed by TSOs to
private contractors. Following the tragic events of September 11, 2001, Congress and
the public demanded that jobs of screening passengers and baggage be performed by
federal employees. The SPP is contrary to the mandate of Congress, and in violation of
the 2008 Consolidated Appropriations Act and the 2008 Defense Authorization Act,
which prohibit the outsourcing of federal jobs without allowing federal employees to
compete for those jobs.
43
The federal government is obligated to American taxpayers to perform its functions
efficiently and spend taxpayer money wisely. Before privatizing work performed by
federal employees, agencies are required to demonstrate through a cost comparison
study (under the rules of OMB Circular A-76) that a contractor is more efficient. The
SPP includes none of the safeguards afforded the public and most other federal
workers such as a cost comparison of federal employee performance to that of the
contractor, risk analysis determination, or demonstration of savings. Although the SPP
gives TSOs a qualified and unenforceable right to a job with the contractor, the SPP
does not remove federal screener managers. Instead, it simply adds a layer of
overhead and cost by keeping federal managers and adding contractor managers, in
addition to contract oversight. The SPP amounts to nothing more than a consolation
prize to private contractors after their past poor performance in aviation screening led to
the federalization of those jobs.
The advocacy of AFGE and our TSO membership at Montana airports is responsible for
putting the brakes on the Montana Airport Authority’s aggressive pursuit of the SPP. In
2009 TSA awarded private security contracts under the SPP for seven airports to a
Virginia contractor, Trinity Technology Group, and is considering the applications of
seven additional airports to use private contractors. After AFGE intervened on behalf of
our members, and TSOs voiced their grave concerns regarding security at the airports
and the possible loss of their jobs, federalized TSOs remain on the job in Montana
airports and no other SPP applications have been approved. Montana airport TSOs
have addressed the consideration of SPP applications by raising important and
legitimate questions in the proper manner even though they have faced retaliation and
intimidation from TSA management and airport officials when they actively opposed the
program.
Fairness to federal workers is directly linked to aviation security. AFGE calls upon
Homeland Security Secretary Napolitano to immediately freeze applications under the
SPP and impose upon the program the same legal requirements for privatization of
federal jobs that apply to the rest of the federal government.
Performance Accountability and Standards System Payouts Reach Infuriating
Lows
Although the Performance Accountability and Standards System (PASS) was not
included in the FY 2011-2012 federal pay freeze, TSA still found a way to disappoint
and anger TSOs by lowering payouts to historic levels while maintaining the same
performance levels. TSA’s 2010 PASS payout is the lowest in the history of the
program. In 2006, the highest rated performers received a 5% raise in addition to a
$3,000 bonus. This year the top performers will get only a 2% raise and a $2,500
bonus because of a tightening budget.
AFGE has long asserted that PASS payouts do not reflect a TSO’s performance, but
rather the limited amount of money TSA wants to spend on compensation for the largest
44
segment of its workforce and the agency’s desire to maintain the percentage of TSOs
who fall into each category. This year TSA cut in half the payouts for employees who
achieved the three top levels. Bonuses for TSOs scoring at the lower performance
levels who do not receive a base pay raise will see their so-called bonus cut by $100.
To further stack the deck against TSOs and limit the numbers achieving the higher
rating, TSA increased the point range to obtain a rating level for some positions and
decreased the special bonuses. Without explanation, TSA placed Lead TSOs in a
category separate from other TSOs and removed Transportation Security Managers
from PASS altogether. AFGE calls on TSA to provide transparency in all its pay
systems by making public the performance criteria, raises and bonuses under each.
AFGE will continue to work with Congress to do away with PASS and move TSOs
under the General Schedule system, which covers most federal employees and has
better protections against favoritism and retaliation, but still rewards good performers.
Training Is Inadequate
A November report issued by the DHS Office of Inspector General (OIG) confirmed
AFGE’s concerns that TSOs are not getting the training they need to effectively do their
jobs. Reports since 2005 by TSOs at various airports to TSA’s Office of Ombudsman
that they were not receiving sufficient time to complete required weekly training have
remained unresolved. The devastating OIG report confirmed that the computers,
software and monitors are not up to date and that TSA failed to provide training for new
X-ray machines installed in 81 airports. After AFGE reported of these practices to
former Homeland Security Committee Chairman Bennie Thompson, (D-MS), TSA
removed the Training and Development component from PASS. As the elected
exclusive representatives of TSOs, AFGE will be able to negotiate a grievance
procedure that can ultimately result in binding, neutral arbitration to ensure that TSOs
are properly trained as required by the ATSA.
Testing Is Flawed
Pursuant to the ATSA, all TSOs are subject to annual testing. While annual testing is
vital to ensure that TSOs have gained knowledge and understanding of new equipment
and new screening techniques, TSA’s constant testing is so unfair that TSOs have no
faith in the ability of the agency to adequately evaluate their performance. In many
instances, the flawed testing has resulted in the termination of good employees who
should have been given proper remedial training and allowed to retest. TSA
management, unable to guarantee proper training and testing procedures, has changed
the recertification policy on an almost yearly basis. This constant change in policy did
not solve the underlying problem: inadequate initial training, unfair testing procedures,
and inadequate remedial training.
As repeatedly has been the case, in 2010 TSOs at some airports had exceptionally high
failure rates on the Image Mastery Assessment (IMA) and Practical Skills Evaluation
(PSE) tests. At some airports TSOs were required to take IMA on X-Ray simulators that
were markedly different that those used at checkpoint and those failing the test were
45
required to retake the test on a different type of X-Ray simulator than used during their
original test. PSE testing at George Bush Intercontinental Airport had so many
irregularities that TSOs believed testers were intentionally failing TSOs. Federal
Security Directors were able to unilaterally declare a dual certification (checkpoint and
baggage) requirement for the entire TSO workforce at their airport without allowing longterm TSOs to opt-out and without giving TSOs who failed either test the option to retrain
and retain. AFGE’s vocal dissatisfaction with the TSA performance evaluation system
did result in a directive allowing TSOs to grieve their test results to address issues such
as equipment malfunctions during the tests or if the testing does not reflect the current
standard operating procedures.
Unsafe Working Conditions Leading to Injury
AFGE’s advocacy focused the attention of both Congress and the public on the lack of
protection against TSO exposure to ionizing radiation while screening passengers and
baggage. In July 2010, AFGE Occupational Health and Safety Specialist Milly
Rodríguez testified before the House Subcommittee on Federal Workforce, Postal
Service and the District of Columbia emphasizing that TSA has never provided
information and training on radiation to its employees. TSA never implemented the
2008 recommendations of the National Institute for Occupational Safety and Health
(NIOSH) including providing regular radiation training to TSOs, improvements in
equipment maintenance and some dosimeter studies of the TSO workplace. AFGE
repeats its demand that TSA provide dosimeters to all TSOs, especially in light of
reports in recent months of what appear to be larger than expected numbers of cancers
and thyroid conditions among TSOs.
AFGE worked with the International Chemical Workers Union Council Center for Worker
Health and Safety Education to develop a training program on radiation exposure
specifically designed to address the concerns of TSOs. Instead of providing this type of
comprehensive training for its workers, TSA has actually complained about the
effectiveness of AFGE’s advocacy.
Despite TSA’s attempts to minimize the reporting and filing of workers’ compensation
claims, the 2010 TSO injury rate of 5.3% remains virtually unchanged from the 2009
rate of 6.3%. AFGE believes this 1% drop is more likely to reflect the “case
management” that TSA claims has reduced days lost to on-the-job injuries. “Case
management” at TSA often consists of inappropriate harassment that has included
management illegally contacting TSOs’ private physicians seeking changes to the
doctor’s work order for their patient. Decreasing the reporting of injuries through these
practices is by no means reducing the occurrence of injury.
High Attrition Rates
Noting that the job of TSO is identified as “mission-critical” jobs, in its report Beneath the
Surface, the Partnership for Public Service noted given that “transportation safety and
security officers and other professionals in mission-critical occupations require an
46
upfront investment to train, attrition of employees with critical skills is of particular
concern given the vital role they play in support of their agency missions.” While
turnover of the TSO workforce is a vast improvement over the turnover rates found
under the former privatized system, the current level of attrition is far higher than
Congress intended in enacting ATSA. TSA tacitly acknowledged an attrition problem in
April 2006 when it implemented a job retention program. Notwithstanding the retention
program, approximately 73% of TSOs who left TSA in 2007 quit their jobs; i.e., did not
retire. In contrast, only one-third of other departing federal workers quit their jobs. Even
though TSOs comprised only 60% of TSA’s workforce in 2009, they represented 90% of
workers who left the agency in 2009.
Chronically Inadequate Staffing
Increasingly TSA has become reliant on split-shifts, requiring TSOs to be
available to work the equivalent of a 12 hour shift. Chronically inadequate staffing leads
to longer hours, extra shifts, shorter breaks, cancelled leave, and cancelled regularly
scheduled days off for TSOs who remain. In turn, longer hours, shorter breaks, and
mandatory overtime leads to an exhausted workforce. An exhausted workforce leads to
high injury rates, low morale, and high attrition rates. All this is due to the lack of
personnel to meet workloads. The passage of time has not healed this problem. In May
2008, the OIG expressed concerns that insufficient staffing at passenger checkpoints
was one of the main causes of concern among TSO staff. Additionally, initiatives to
improve morale were hampered due to the challenges of staffing. In 2010 TSOs
continue to report that their ability to perform their duties is hindered by staffing
shortages at checkpoints and in baggage.
Need for Restoration of Fundamental Employee Rights
Lawmakers and TSA policy makers need not reinvent the wheel to improve the
personnel problems at TSA. They can reinstate Title 5, the full Rehabilitation Act, the
Fair Labor Standards Act, and General Schedule pay and leave policies. These civil
service protections are fully able to create an effective personnel policy for TSA’s
screening personnel. All that is needed for long term personnel protection is legislative
action to strengthen TSA by empowering TSOs to do their jobs to the best of their
ability, and to dignify their work by restoring full constitutional and due process rights,
including the right to bargain collectively should they so choose. AFGE will work with
the Obama Administration and Congress to guarantee exclusive recognition for the
union and collective bargaining for TSOs, by guaranteeing full Veterans’ Preference, all
whistleblower protections, due process and Constitutional rights, appropriate use of
leave without discipline, proper salaries and increases, and full EEO protection for
TSOs.
Conclusion
AFGE continues its activist tradition in the fight for TSO rights. We will hold President
Obama to his promise to grant collective bargaining rights to TSOs and continue to work
47
with our allies in Congress to support legislation that will restore worker protections to
federal Transportation Security Officers to ensure that they have the same protections
as other federal employees. These include the right to federal court review of
constitutional violations, to protection from discrimination based on disability, and
meaningful whistleblower protections. AFGE will also seek legislation that ends the
unfair PASS system and provides full and fair compensation for TSOs. The wait for
rights has been long, but AFGE is stronger than ever in its commitment to stand and
fight with our TSO members until every TSO has the rights and protections of other
federal workers.
48
Whistleblower Protection
Introduction
In 1989, Congress unanimously passed the Whistleblower Protection Act (WPA) as the
premier merit system law for accountability to taxpayers. Since 1994, when
amendments strengthening the WPA were added, the law has been functionally
overturned by a series of increasingly hostile decisions by the U.S. Court of Appeals for
the Federal Circuit. The most immediate obstacle is a series of precedents creating
exceptions to coverage for any lawful disclosure evidencing specified, significant
misconduct. Contrary to explicit statutory language, court precedents now exclude
disclosures to co-workers, supervisors or others in the chain of command, those
suspected of wrongdoing, and those where an employee is doing his or her job by
making a disclosure. A 1999 court decision made it all but impossible for whistleblowers
to qualify for protection by establishing a presumption that the government acts in
accordance with the law and by requiring the whistleblower to prove otherwise with
irrefragable--uncontested and undeniable--evidence.
For the last 16 years, Congress has unanimously approved an appropriations
amendment known as the anti-gag statute applying to the WPA and related good
government statutes, such as the Lloyd-Lafollette Act. The anti-gag statute protects
merit system worker communications with Congress from nondisclosure rules or similar
types of gag orders. However, as an appropriations clause, the amendment’s
effectiveness has been hampered because it does not include an available remedy.
Protections of communications to Congress are so important that they should become a
permanent law rather than being subject to annual reaffirmation as an appropriations
amendment.
After years of neglect, if not outright disdain, of whistleblower rights and protection from
the Bush Administration, President Barack Obama assumed office with a track record
as a supporter of whistleblower protections. President Obama noted in his White House
ethics agenda that federal employees are the “watchdogs of wrongdoing and partners in
performance” and pledged that his administration would “strengthen whistleblower laws
to protect federal workers who expose fraud and abuse of authority in government” and
to expedite the process for reviewing whistleblower claims and ensure that
whistleblowers have “full access to courts and due process”.
Congress Recognizes Whistleblower Protections as an Important Element of
Government Accountability
A few weeks into the 111th Congress, the House began debate on President Obama’s
economic stimulus package. Recognizing that the bill granted enhanced whistleblower
rights to all workers (federal contractor, state and local) administering the funded
programs except federal workers, Representatives Todd Platts (R-PA) and Chris Van
Hollen (D-MD) cosponsored the Whistleblower Enhancement Act as an amendment to
the stimulus bill in recognition that strong federal worker whistleblower protections are
49
essential to the accountability necessary to properly administer the stimulus package’s
programs. The Whistleblower Enhancement Act, which also passed the House with a
strong bipartisan vote in 2007, included protections for Transportation Security Officers,
national security whistleblowers at the FBI and intelligence agencies, protections for
government contractors, jury trials so that whistleblowers have a fair day in court, and
reinforced protections for federally-funded scientists. Support for the amendment was
so strong that the Platts/Van Hollen amendment was included in the stimulus bill by
voice vote. Although the amendment was not included in the version of the bill sent to
the President, the House was again on record as supporting whistleblower protection
reform for federal workers.
In the waning days of the 111th Congress, the Senate passed an amended version of S.
372, the Whistleblower Protection and Enhancement Act of 2009 introduced by Sen.
Daniel Akaka (D-HI) and George Voinovich (R-OH) by unanimous consent. As a result
of the advocacy of AFGE and the coalition of other worker advocates and good
government groups, Representatives Van Hollen and Platts worked to bring a version of
the bill reforming protections of the bill applying to Title 5 and TSA workers to the House
floor over the objections of Republican members of the House who sought to link
federal worker whistleblower protections to questionable disclosures of classified
Wikileaks documents Although the House worked quickly to pass a bill nearly identical
to the Senate bill passed a few weeks earlier, an anonymous Senator’s hold defeated
enactment an hour before adjournment, even though both Senate majority and minority
leaders supported the bill.
Conclusion
AFGE strongly urges the House and Senate to immediately pass the Whistleblower
Protection Enhancement Act in the new Congress. President Obama and
Congressional leadership should dispel the notion that whistleblower protections for
federal workers permits public disclosures of classified information. To the contrary, the
Whistleblower Enhancement Act is an anti-leaks measure because it provides a safe
alternative for federal workers reporting fraud, waste and abuse by working within the
system. It is also time for the Obama Administration to use the power of an Executive
Order to secure rights for national security workers—including security clearance
review—outside of the political process. AFGE will actively support these efforts and
continue the bipartisan dialog that came so close to success in the final hours of the
111th Congress.
50
Domestic Partnership Benefits
Introduction
The Domestic Partnership Benefits and Obligations Act of 2009, was reintroduced by
Senator Joseph Lieberman (I-CT) and Representative Tammy Baldwin (D-WI) in the
111th Congress. The House bill (H.R. 2517) and the Senate companion bill (S. 1102)
both provided the same-gender domestic partners of federal employees the same
benefits available to spouses of married federal employees. AFGE was disappointed
the bills failed to receive votes prior to the adjournment of the 111th Congress and
strongly urges Senator Lieberman and Representative Baldwin to continue the fight for
equality on behalf of all federal workers.
The Domestic Partnership Benefits and Obligations Act is about equity. It is not, as its
opponents try to argue, about providing any form of special preference or extra benefit
for federal employees who have formalized their exclusive relationships with a samegender domestic partner as compared with those who marry a person of a different
gender. The equalization of benefits would extend to health insurance under the
Federal Employees Health Benefits Program (FEHBP), retirement benefits, rights under
the Family and Medical Leave Act (FMLA), life insurance under the Federal Employees
Group Life Insurance (FEGLI) plan, workers’ compensation, death and disability
benefits, and reimbursement benefits for relocation, travel, and related expenses.
Further, the biological and adopted children of the domestic partner would be treated
just like step-children of married federal employees under the benefits listed. Finally,
under the legislation, same-gender domestic partners would be subject to the same
anti-nepotism and financial rules and obligations as those that apply to married federal
employees.
Background
To become eligible for the equitable treatment provided for in the legislation, federal
employees would be required to file legal affidavits of eligibility with the Office of
Personnel Management (OPM) to certify that they share a home, and financial
responsibilities. The employee must affirm the intention to remain in the domestic
partnership indefinitely, and must notify OPM within thirty days if the partnership is
dissolved. The provisions of the legislation would apply only to same-sex domestic
partnerships.
The practice of treating married employees and those in committed same-sex
partnerships equitably with regard to health insurance and retirement benefits is wellestablished in the private sector and in many state and local governments. More than
half of the Fortune 500 firms extend equal benefits to spouses and same-sex domestic
partnerships. They do so not only because it is fair and appropriate, but also because
the market has made such policies an imperative in the competition to attract and retain
excellent employees. The federal government should do no less. It should strive to
attain the highest level of fairness for its employees, and it has a duty to all taxpayers to
51
adopt employment policies that facilitate the hiring and retention of a workforce of the
highest possible quality.
The impending retirement of the baby boom generation of federal employees has
occasioned an enormous amount of hang-wringing among administration officials and
career agency managers. Private contractors have been eager to win for themselves
as much as possible of the work that has been performed by retiring federal employees,
and they are free to offer domestic partner benefits. A central question at the heart of
all this anxiety is whether the federal government will be able to recruit the next
generation, or whether the most desirable candidates for federal jobs will be lost to the
private sector.
Putting aside for a moment the still-enormous pay gap between the federal and nonfederal sectors and the fact that FEHBP is poorly run and as a result costs both
taxpayers and federal employees more than it should, there is the issue of equitable
treatment of GLBT (gay, lesbian, bisexual and transgender) people. When the Human
Rights Campaign released its 2006 study of the employment practices of Fortune 500
companies with respect to domestic partners, its president, Joe Solmonese,
summarized the findings as follows: “Companies do it (provide equitable benefits to
domestic partners) because it’s good for business. American corporations understand
that a welcoming environment attracts the best talent.”27 Refusal to provide equitable
treatment with regard to the provision of employee benefits is a violation of the merit
system principle that promises equal pay for substantially equal work. The economic
value of family coverage for health insurance, survivor benefits for retirement, disability,
workers’ compensation, and life insurance; and full family coverage of relocation costs
are substantial to a worker and would have extremely modest costs for the government.
The equal pay principle has historically been understood to include all financial
compensation, not just salary. Non-cash federal benefits make up almost a third of a
typical federal employee’s compensation. In many metropolitan areas, the salary gap
between federal and non-federal jobs has actually grown in recent years so that it now
stands at 24 percent on average nationwide. To exacerbate the challenge this poses to
efforts by federal agencies to hire the next generation of federal employees by
continuing to discriminate between married employees, and those in domestic
partnerships is as irrational as it is unfair.
Imagine the perspective of a high-performing federal employee in a job that the federal
government admits it has trouble recruiting for, who happens to have a domestic partner
and two kids. Perhaps the worker is a Certified Registered Nurse Anesthetist in the VA,
or a Defense Department Information Technology Specialist with a high security
classification, or an experienced DHS contract administrator with the proven ability to
identify fraud on the part of contractors, or a skilled electrician who works on repair of
highly complex weapons, or a Corrections Officer who puts his life on the line every day
to keep us and his fellow officers safe from dangerous inmates in federal prisons.
27
“Majority of Large Firms Offer Employees Domestic Partner Benefits” by Amy Joyce, June 30, 2006, The
Washington Post.
52
Consider that he or she might have a co-worker with identical job responsibilities and
performance who happens to have a spouse and a couple of kids.
Because the Domestic Partnership Benefits legislation has not yet been enacted, the
two workers will receive vastly different compensation in return for their work for the
federal government. One would enjoy subsidized family coverage from FEHBP, worth
approximately $8,561.80 per year, and that subsidy is not taxed. The employee with
the domestic partner and kids, in contrast, is eligible for only single coverage from
FEHBP. As of 2008, the difference between what the government pays for FEHBP for
family versus single coverage is $4,790.76 per year. To obtain similar insurance for his
family, the employee in the domestic partnership would have to pay at least the same
$4,790.76 per year in the open market, and the money spent on the premium would be
tax deductible, but not tax free.
A married federal employee with two children who dies early leaves his or her survivors
with benefits ranging from $12,432 to $38,628 per year depending upon his or her
salary. In identical circumstances, the survivors of a federal employee with a domestic
partner and two children are left with nothing. If an employee in a domestic partnership
becomes disabled, the worker is eligible for anywhere from $7,932 to $21,852
depending on age, earnings, and the severity of the disability. But if the employee were
married with children and had the exact same age, earnings, and severity of day to
keep us and his fellow officers safe from dangerous inmates in federal prisons.
Consider that he or she might have a co-worker with identical job responsibilities and
performance who happens to have a spouse and a couple of kids.
Because the Domestic Partnership Benefits legislation has not yet been enacted, the
two workers will receive vastly different compensation in return for their work for the
federal government. One would enjoy subsidized family coverage from FEHBP, worth
approximately $8,561.80 per year, and that subsidy is not taxed. The employee with
the domestic partner and kids, in contrast, is eligible for only single coverage from
FEHBP. As of 2008, the difference between what the government pays for FEHBP for
family versus single coverage is $4,790.76 per year. To obtain similar insurance for his
family, the employee in the domestic partnership would have to pay at least the same
$4,790.76 per year in the open market, and the money spent on the premium would be
tax deductible, but not tax free.
A married federal employee with two children who dies early leaves his or her survivors
with benefits ranging from $12,432 to $38,628 per year depending upon his or her
salary. In identical circumstances, the survivors of a federal employee with a domestic
partner and two children are left with nothing. If an employee in a domestic partnership
becomes disabled, the worker is eligible for anywhere from $7,932 to $21,852
depending on age, earnings, and the severity of the disability. But if the employee were
married with children and had the exact same age, earnings, and severity of disability,
his or her disability eligibility would range from $11,640 to $32,964.
53
The difference between the retirement annuities of employees with and without survivor
designations vary widely on the basis of length of service, age at retirement, high-three
salary, and retirement system. The two major federal retirement systems, the Civil
Service Retirement System (CSRS), and the Federal Employees Retirement System
(FERS) both allow married federal employees to ensure that their survivors continue to
receive benefits after they die. The employee is required to take a reduction in the
amount of his or her annuity in order to “buy” this survivor protection, but in most cases,
taking the survivor option costs the employee about half of the value of benefits
received by the survivor.
FERS provides two options for survivor annuities, either one half or one fourth of the
value of the annuity. CSRS is a bit more complicated, allowing 55 percent of anything
from the full annuity to 55 percent of one dollar of annuity. CSRS and FERS also allow
survivor annuities to be paid to more than one former spouse at a time, as well as a
widow or widower. (It is therefore difficult to argue that current law is based upon a
religious concept of marriage or a view that marriages are more stable than domestic
partnerships). The important point is that the financial value of survivor annuity benefits
is substantial, and is, for the vast majority of federal employees who earn a full
retirement annuity after a career of federal service, the single largest component of
compensation after salary and their own annuity. This inequity in the treatment of a
federal employee’s survivors is the most severe and the most indefensible. After all,
even the most ardent opponent of equality might feel shame at depriving an elderly
surviving domestic partner the survivor benefits available to an elderly surviving
husband or wife.
How Can Anyone Square These Facts With The Merit System Principle Of Equal
Pay For Substantially Equal Work?
The answer is that one cannot justify discriminating against federal employees who are
in domestic partnerships versus federal employees who are in conventional marriages.
All else equal, sexual orientation should not form the basis of discrimination in
compensation. But unless and until the Domestic Partnership Benefits Act becomes
law, discrimination in compensation will continue to occur in the federal government.
Of course, passage of this legislation is not just a matter of fairness. It is also a matter
of what is necessary for the federal government to succeed in recruiting the next
generation of government employees, and to retain them once they form monogamous
relationships and start families. There will be no reason to stay with the government
when other employers, whose mission can be just as compelling as the government’s,
offer higher salaries and more comprehensive benefits.
Employees who do stay and are affected by the inequity will understandably feel the
pain of this discrimination, and it will inevitably affect their morale and commitment to
their agency’s mission. They will know that they are receiving far less compensation for
their work than their married coworkers, and have every reason to feel resentment at
the inequity.
54
Cost cannot serve as a valid rationale for failure to pass this legislation, as the
Congressional Budget Office (CBO) has calculated that enactment would add less than
one half of one percent to the existing costs of these programs. That estimate excludes
the cost of turnover, recruitment, and training when experienced federal employees
leave federal service because of this inequity. The cost should be viewed as if it were
simply the case that larger numbers of federal employees began to marry. Surely the
Congress would not respond to this by abolishing the benefits currently extended to
spouses and families. As such, no one should argue that the happy occasion of the
formation and maintenance of families is unaffordable or insupportable for the United
States government.
Administrative and Executive Action
In June 2009, President Obama issued a memorandum on “Federal Benefits and NonDiscrimination” that was followed by the Office of Personnel Management (OPM) issue
of Regulations to Extend Partnership Benefits” on September 15, 2009. The
Presidential memo and the OPM regulations allow the federal government to provide
nonstatutory benefits to domestic partners of federal employees. Also in 2009 the
Office of Special Counsel reinstated its longstanding policy of accepting complaints of
sexual orientation discrimination in federal employment for investigation. Scott Bloch,
the Special Counsel under former President Bush, refused to pursue these complaints
during his term.
Conclusion
The Domestic Partnership Benefits Act is fair and equitable for employees, is affordable
for the taxpayers, and will greatly enhance recruiting and retention in the federal
government. It should be passed and signed into law with all due speed.
55
Employment Non-Discrimination Act (ENDA)
Background
The pursuit of justice has not always been easy or popular, but AFGE stands true to a
basic tenet of fairness: an employee or job applicant should be judged by his or her
ability to perform the job. In this light, AFGE strongly opposes employment
discrimination on the basis of sexual orientation. Right now, it is not a statutory civil
rights violation to fire a hard-working, dedicated federal employee simply because that
worker is not heterosexual – and that is wrong. Although this protection has been
applied administratively to federal employees for three decades, the most recent
Special Counsel systematically denied federal workers a process to remedy
discrimination based on sexual orientation demonstrating the need for statutory
protections. The Employment Non-Discrimination Act (ENDA) was reintroduced in the
Senate as S. 1584 by Senator Jeff Merkley (D-OR) and in the House as H.R. 3017 by
Rep. Barney Frank (D-MA). ENDA extends federal employment discrimination
protections currently provided on race, religion, sex national origin, age and disability to
sexual orientation for both public and private workers. AFGE supports ENDA as well as
legislation extending benefits to domestic partners of federal employees.
ENDA Provides Basic Legal Protections

Extends federal employment discrimination protections currently based on race,
sex, religion, national origin, age and disability to sexual orientation. ENDA
extends fair employment practices and does not convey special rights.

Prohibits public and private employers, employment agencies and labor unions
from using an individual’s sexual orientation as the basis for employment
decisions.

Provides for the same process as permitted under Title VII of the Civil Rights Act
of 1964 and the Americans with Disabilities Act but has limited remedies.
Remedies that are available for cases of statistically disparate impact (affirmative
action, quotas or the prohibitions of policy or practice) are permissible under
ENDA.
What ENDA Does Not Do:

Does not cover most religious organizations and employers with 15 or fewer
employees.

Does not apply to the uniformed members of the armed forces and does not
affect current law on lesbians and gays in the military.

Does not require an employer to provide benefits for the same-sex partner of an
employee.
56

Does not allow the Equal Employment Opportunity Commission (EEOC) to
collect statistics on sexual orientation.
Although both the House and Senate bills had substantial bipartisan support, no votes
were held on the legislation.
Conclusion
AFGE strongly urges the reintroduction and passage of ENDA in the House and
Senate.
57
Paid Parental Leave
Introduction
Despite the protections of the Family and Medical Leave Act (FMLA), federal workers
are among those who must choose between a paycheck and meeting their family
obligations because they currently have no paid parental leave. As it did during the
110th Congress, the House passed H.R. 626, the Federal Employee Paid parental
Leave Act on June 4, 2009 with a bipartisan vote of 248 – 154. The bill and its Senate
companion, S. 354, introduced by Senator Jim Webb (D-VA) provided federal
employees 4 of the 12 weeks of family medical leave as paid leave upon the birth,
adoption or fostering of a child.
Virtually all research on child development and family stability supports the notion that
parent-infant bonding during the earliest months of life is crucial. Children who form
strong emotional bonds or “attachment” with their parents are most likely to do well in
school, have positive relationships with others, and enjoy good health during their
lifetimes. These are outcomes that should be the goal for all children, including those of
federal employees. Spending time with a newborn or a newly adopted child should not
be viewed as a personal choice, or a luxury that only the rich should be able to afford.
The only reason a new parent would ever go back to work immediately after the birth or
adoption of a child—even with the protections of the FMLA—is because she or he could
not do without his or her paycheck. And far too many workers in both the federal
government and outside must make this terrible choice.
Congressional opponents of paid parental leave for federal employees have raised
arguments largely based on cost, or notions that attempt to “rank” parental status and
are unrealistic about the ability of federal workers to accrue leave. No one can
accurately project the cost of extending this benefit to new parents, but we can
speculate on the categories of cost of failing to do so. Productivity is lost when a parent
has had to come back to work too soon to have found proper daycare for a newborn or
newly adopted child or when federal employees come to work when they are ill because
they used up all of their sick leave during the adoption process. A lack of paid parental
leave also negatively impacts the government when a good worker, trained at taxpayer
expense, decides to leave federal service for another employer who does offer paid
leave.
The Federal Employee Paid Parental Leave Act
Some opposition is based on irrelevant distinctions between adoptive parents, birth
parents, mothers and fathers. The FMLA settled the question of whether anyone
besides a woman who has just given birth deserves time off from work to care for a
child. For that same reason AFGE opposes attempts to create an employer-financed
short-term disability insurance for federal employees as a means of providing paid
maternity leave for birth mothers. Such a short-term disability insurance program would
not provide a solution for new fathers or new adoptive parents and is therefore
58
discriminatory as a solution to the problem of providing paid leave to new parents. The
Federal Employee Paid Parental Leave Act takes it as a given that all parents deserve
equal treatment. Federal employees are only able to accumulate a maximum of 30
days of annual leave, not an adequate amount of time for providing care to a newborn
or a newly adopted child. By most conservative estimates it would take a federal worker
who takes two weeks of annual leave and 3 days of sick leave per year close to 5 years
to accrue enough sick and annual leave to receive pay during the 12 weeks of parental
leave allowed under FMLA. Even if a federal worker never got sick and never went on
vacation it would take over 2 years to accumulate enough leave to pay for 12 weeks of
parental leave. The alternatives suggested by federal employee paid parental leave
opponents are far too simplistic and unrealistic to adequately address the problem.
Federal workers who take unpaid parental leave too often fall behind on their bills and
face financial ruin. Federal workers in their child-bearing or adopting years, earn less,
on average, than other federal employees. They are at a moment in their careers when
they can least afford to take any time off without pay, and least likely to have
accumulated significant savings. One AFGE member wrote she has been a federal
employee since 2002, and has had 3 children during that time. She wrote:
I found it very difficult to keep leave since I am using it for doctor’s
appointments, maternity leave and other instances of sickness that may
occur with me or my children. Since 2002 I have borrowed 6 weeks of
leave for maternity leave—which took me over 2 years to pay back.
During the period of time when I returned to work and had to pay my sick
leave back, neither me nor my kids could afford to get sick because I did
not have any leave to use. During my duration of Leave Without Pay I had
to resort to public assistance to make ends meet. It was very hard to ask
for help during my maternity leave. I had to explain to them that I make
more than some of the social workers taking my application but I am
currently on leave without pay and need assistance until my 8 weeks
maternity period is over.
Although there is no law providing paid parental leave for federal workers that would
prevent the situation described by the AFGE member, the federal government currently
reimburses federal contractors and grantees for the cost of providing paid parental
leave to their workers. Surely if such practice is affordable and reasonable for
contractors and grantees, federal employees should be eligible for similar treatment.
Conclusion
The time has come for the federal government to set the standard for U.S. employers
on paid parental leave. Despite the failed but pervasive arguments of those who seek
to blame federal worker wages and benefits for the current budget crisis, AFGE knows
that the federal government can only attract and keep the workforce necessary to carry
out its mission by providing benefits on par with other large employers. AFGE is an
active member of a coalition of worker and work-family advocates in support of the
59
legislation. The federal government should set a clear example to the majority of
private employers who refuse extend this crucial benefit to their employees unless their
competitors or the law requires it of them. The benefits to children and families of four
weeks of paid parental leave are enormous and long-lasting. AFGE strongly urges
reintroduction and passage of the Federal Employee Paid Parental Leave Act during the
112th Congress.
60
“One America, Many Voices” Act
Introduction
According to the U.S. Census Bureau, over 47 million people currently living in the U.S.
speak a language other than English. More than 11 million people in the U.S. are
linguistically isolated, meaning that they lack a command of the English language and
have no one to help them with language issues on a regular basis. A growing number of
federal employees provide services to the linguistically isolated by using multilingual
skills in their official duties to explain application processes, determine benefit eligibility
and provide public safety. Increasingly, the multilingual skills of federal employees are
an absolute necessity to serve the public and accomplish the mission of federal
agencies. Yet there is no standard across federal agencies to provide compensation for
federal workers who make substantial use of their multilingual skills in the workplace.
The “One America, Many Voices” Act
In 2010 Representative Mike Honda (D-CA) reintroduced the "One America, Many
Voices" Act (H.R. 4832) to ensure that all federal workers who use their multilingual
skills in the workplace on a regular basis are fairly compensated in the 111th
Congress. The bill amends 5 U.S.C. § 5545 by adding multilingual skills to the list of
factors for which a differential might be paid. Current law provides for a pay differential
to federal workers for night, standby, irregular, and hazardous duty work. The
amendment authorizes the head of an agency to pay a 5% differential to any employee
who makes substantial use of a foreign language in his or her official duties.
The necessity for a multilingual pay differential has been recognized by federal law
enforcement agencies. Agencies such as Customs and Border Protection and the
Border Patrol recognize multilingual skills through either a pay differential or bonuses.
Employees who can communicate effectively with the populations federal agencies are
mandated to serve greatly assist the agencies in carrying out their respective missions.
In addition to adequately recognizing the skills of current federal workers, a multilingual
pay differential would also help to entice young workers with multilingual skills into
federal civil service. Although the private sector often pays a substantial dividend for the
ability to speak fluently more than one language, many young workers with a
commitment to their communities would be more likely to consider federal employment
as a career option if they were to receive adequate compensation for their much soughtafter language skills.
A number of federal agency offices are located in areas with a large and growing
population of citizens with limited English speaking ability, such as California, New
Mexico, Texas, New York, and Hawaii. Between 1990 and 2000, the non-English
speaking population doubled in Nevada, Georgia, North Carolina, Utah, Arkansas and
Oregon. Multilingual skills will become increasingly necessary to foster client
communication for effective delivery of services and for the successful function of
61
federal agencies. The "One America, Many Voices" Act provides both a mechanism to
pay current federal workers using their bilingual skills on the job, and works as an
incentive to aid in the future recruitment of bilingual applicants.
Conclusion
AFGE is actively seeking introduction of the "One America, Many Voices" Act in the
House and Senate and to show support for the legislation by adding a long and diverse
list of cosponsors to the bill. The benefits of a more efficient government and better
services to the public will far outweigh the modest cost of paying this differential.
62
Department of Veterans Affairs
Introduction
In the 112th Congress, AFGE and the National VA Council (AFGE) will seek more
accountability for Department of Veterans Affairs (VA) spending practices, compliance
with personnel provisions in recent health care and benefits legislation and equal rights
and fair treatment for all VA employees, including veterans.
In addition, the VA should strive harder to become the model employer of the veterans it
serves, We will also continue our efforts to curb the VA’s illegal and wasteful
outsourcing of functions that are inherently governmental or more appropriately
performed by its own workforce, including veterans who bring a special dedication to
their work on behalf of others who have also served.
Finally, AFGE is very troubled by the lack of permanent leadership in two of the three
VA agencies. Both the Veterans Benefits Administration (VBA) and National Cemetery
Administration (NCA) are still operating under the direction of Acting Undersecretaries
who were in place during the prior Administration. This lack of permanent leadership
greatly impedes the VA’s ability to introduce innovations, cost efficiencies and personnel
policies that better serve the interests of veterans, taxpayers and the VA workforce.
Congressional Action Needed:

Appoint permanent Under Secretaries of the Veterans Benefits Administration
and National Cemetery Administration.
More Accountability for VA Spending: Where did all the direct need dollars go?
Lawmakers and veterans’ groups count on AFGE members to be the “eyes and ears on
the ground” to monitor VA spending practices. Our members’ reports indicate that the
VA continues to use funding increases from Congress to expand its already top heavy
management workforce and pay excessive management bonuses, at the expense of
direct services to veterans.
Funding for the VA health care system was more adequate and predictable last year,
thanks to successful efforts by AFGE working with veterans service organizations
(“VSO”) to secure advance appropriations funding reform legislation in 2009 (Public
Law 111-81). However, we are troubled by reports from several Veterans Integrated
Service Networks (VISN) that directors are implementing hiring caps even though
permanent funding for Fiscal Year 2011 was already appropriated as part of the new
two-year funding cycle.
Both the Veterans Health Administration (VHA) and VBA continue to expand their
already top heavy workforce with new management layers, while front line staff struggle
to provide direct services to veterans. The budgets and staff at the VA’s 21 VISN
63
offices have exploded far beyond initial levels, and have also led to more wasteful
layers of management to support the VISNs within the medical centers.
Our clinicians report that at many facilities, new patient care initiatives are top heavy
with managers without any corresponding increase in front line clinicians. The most
glaring example of late is the new team based “PACT” initiative. While this team
approach has the potential to improve quality and access of veterans’ care, the early
evidence suggests that the new services to be delivered through PACT are not being
supported by sufficient staff. Rather, PACT is placing significant new responsibilities on
VA physicians and nurses who are already carrying caseloads of hundreds, in some
cases, more than a thousand patients. In addition, some PACT teamlets are being
staffed by removing clinicians form other units that are badly understaffed. Some
clinicians assigned to PACT teamlets have been required to perform functions for PACT
that are outside their scope of practice or their license. Even at this early stage of
PACT, we are seeing an increase in “wait list gaming” that impedes veterans from
getting appointments in order to produce favorable performance measures for
managers.
The Care Coordination Home Telehealth Program is another recent VHA initiative that
is understaffed, and diverting staff from other needed areas.
Similarly, VBA continues to expand its management workforce at the expense of front
line claims processing staff. Many of the new coaches and assistant coaches at the
VBA regional offices (ROs) lack the experience or expertise to mentor other employees,
perform quality reviews or process claims themselves. As a result, they must take
experienced employees out of production to conduct quality reviews and supervision.
As discussed below, faster implementation of the supervisor skills certification
provisions in 2008 legislation could alleviate some of this problem.
We also urge greater oversight of VBA’s management of the pilot projects currently in
place in a number of ROs to identify innovations that could reduce the claims backlog.
Enormous resources have been invested in these pilot projects, and to date, some
helpful lessons have been learned. However, there is a severe lack of coordination by
VBA leadership to establish a set of best practices and benchmarks that can transform
these pilots into permanent programs on a national scale.
Congressional Action Needed -- Oversight and Investigation of:




VHA VISN organizational structure, staffing levels and budgets.
Staffing for PACT, telehealth and other health care delivery initiatives.
VBA management structure, and skill levels of managers involved in supervision,
quality assurance and training.
Executive bonus and pay provisions in P.L. 111-163.
64
Compliance with Recent Personnel Legislation
We urge lawmakers to exert pressure on the VA to comply with healthcare and benefit
personnel laws that are still not fully implemented, including provisions still not in place
seven years after enactment! These delays and acts of noncompliance impact
workplace morale, reduce veterans’ access to services, and weaken the VA’s ability to
recruit and retain clinicians in the face of a rapidly aging VA workforce.
The Caregivers and Veterans Omnibus Health Services Act (Public Law 111-163)
(Caregiver Act), enacted in May 2010, included several provisions to improve nurse
recruitment and retention (in addition to provisions we strongly opposed such as 400
percent executive nurse bonus increases, new large pharmacist executive bonuses,
and increased discretion over physician and dentist executive pay, and the unjustified
expansion of the broken, unfair Hybrid Title 38 personnel system.) We are troubled by
reports of VHA foot dragging in issuing guidance as well as some direct noncompliance
with these new requirements. For example, some managers are refusing to recognize
that part time nurses can now acquire permanent employment status after two years
(and retain permanent rights if they convert from full time to part time status). Other
facilities are ignoring the requirement in both the Caregiver Act and 2004 personnel
legislation (P.L.108-445) to limit nurse mandatory overtime to emergency
circumstances. We continue to receive reports of VHA employees denied tuition
assistance despite provisions in the 2010 law that expand access to this valuable
recruitment and retention tool.
VHA is also vastly underutilizing another nurse recruitment and retention tool enacted in
the 2004 law and strengthened by the Caregiver Act: authority to offer alternative work
schedules (AWS) that provide full-time pay for three 12-hour days. Despite the fact that
AWS is extremely popular among nurses working in other health care settings, the VA
has made it available in only a handful of facilities.
As discussed below, the VA has invoked an unintended loophole in Title 38 bargaining
rights to avoid compliance with a number of these requirements, as well as other
personnel legislation for Title 38 health care professionals. Thus, legislation to restore
equal bargaining rights for Title 38 clinicians is essential to ensuring VA’s compliance
with most personnel laws.
VBA’s delays in complying with the Veterans’ Benefits Improvement Act (Public Law
110-389), enacted in 2008, have severely limited its ability to reduce the disability
claims backlog as well as build and retain a strong claims processing workforce. VBA
continues to lag far behind in implementation of provisions for a more workable
performance measurement system that would properly credit work to develop and
process claims accurately, which in turn would alleviate the claims backlog. As a result,
an assembly line mentality persists at VBA, along with pervasive shortcuts in training for
new and senior employees handling increasingly complex claims.
65
The human loss to veterans occurs on both ends: Veterans filing benefits claims
experience more delays and errors, and veterans who are dedicated to serving fellow
veterans as VBA employees are unfairly terminated because of policies that rush new
hires into production and impose arbitrary, unreasonable performance standards on
senior employees.
As already noted, VBA has still not implemented the 2008 statutory requirement for
skills certification testing of supervisors who are in desperate need of more expertise for
mentoring and quality assurance functions. An overhaul of the skills certification test
already in place for veterans service representatives (VSR) is also long overdue; it is
still plagued by very low passage rates and is not a reliable measure of performance.
Congressional Action Needed:


Expedite compliance with part-time nurse, nurse overtime, loan assistance and
alternative work schedule provisions in P.L. 111-163 and P.L. 108-445.
Expedite implementation of supervisor skills certification provisions in and work
credit provisions in Public Law 110-389.
Equal Employment Rights for VA Employees
Equal Bargaining Rights For Title 38 Health Care Professionals
Since 2003, the VA has prohibited collective bargaining over most workplace issues
impacting Title 38 clinicians, resulting in starkly different bargaining rights than other
clinicians with Title 5 rights at VA, military and federal prison facilities. These Title 38
clinicians - physicians, dentists, registered nurses (RN), physician assistants (PA),
podiatrists, optometrists, chiropractors, and expanded duty dental auxiliaries – are
covered instead by “Section 7422” bargaining rules.
Arbitrary inconsistencies have resulted from these Bush era policies. VA Hybrid Title 38
psychologists can bargain over schedules but VA psychiatrists cannot, and VA licensed
practical nurses (LPN)s can bargain over assignments but RNs cannot. A physician at
a military or federal prison facility can negotiate over weekend rounds but a VA
physician cannot. By singling out Title 38 clinicians, the VA is also singling out veterans
who receive their care at the VA because their physicians and nurses are less able to
speak up for safe and quality patient care.
Even though the prior Administration’s reading of Section 7422 was inconsistent with
Congressional intent and very damaging to recruitment and retention of health care
personnel, the VA dug in its heels and invoked Section 7422 bargaining exemptions to
justify noncompliance with a growing number of its own policies and regulations and
personnel protections enacted by Congress. For Title 38 employees, enforcement of
basic workplace rights, including equal employment, unfair labor practice and workers
compensation protections, became virtually impossible.
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At the start of current Administration, we had good reason to believe that it would reject
the Bush approach, and return to the narrower reading of that law adopted by the
Clinton Administration. The joint labor-management partnership agreement reached
during the Clinton administration set reasonable limits on the scope of Title 38
bargaining. In a 2008 letter issued during his campaign, President Obama promised
AFGE that he would address the Section 7422 problem, recognizing that “collective
bargaining rights are fundamental to ensure quality health care delivery”.
AFGE launched its legislative campaign during the same period, securing bipartisan
support for a 7422 legislative fix in both the 110th and 111th Congresses. Last summer,
the Senate Committee on Veterans’ Affairs approved legislation for equal bargaining
rights over compensation matters, with support from every Democratic Committee
member. Several national veterans’ organizations have also publicly expressed their
support for restoration of these rights.
Sadly, the current Administration has since made its position clear in testimony to
Congress and in Secretary-level “7422” determinations: The Department will continue
to apply the Bush era interpretation of the law because, in the its view, equal collective
bargaining rights for VA Title 38 clinicians would endanger patients and interfere with
management rights.
AFGE was again somewhat encouraged in 2009 when the VA offered to participate in a
labor-management workgroup to define a more workable interpretation of Title 38
bargaining law. The workgroup process turned out to be very frustrating and delayridden, but we were pleased to reach consensus on a small number of joint
recommendations that expanded bargaining rights. Then, after a very long wait, we
received the Secretary’s decision in December 2010. We were extremely disappointed
to learn that he had decimated several joint recommendations by unilaterally altering
joint language from the workgroup. Further discussions with the Secretary are likely to
continue this year.
Clearly, the only effective solution to the 7422 dilemma is legislation. The rights of VA
doctors and nurses must no longer hinge on presidential elections or the discretion of
VA human resources personnel.
Congressional Action Needed:

Enact legislation to amend 38 USC §7422 to restore Congressional intent to
provide Title 38 health care professionals with rights to bargain over indirect
patient care, peer review and compensation matters equal to those enjoyed by
hybrid Title 38 VA health care professionals and federal employees working in
military hospitals and other federal health care systems.
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Hybrid Title 38 Personnel System
VHA’s Hybrid Title 38 personnel system has grown dramatically over the last decade, to
cover 26 occupations and over 50,000 employees. The Caregiver Act authorized the
conversion of all VHA’s nursing assistant from the Title 5 to the Hybrid system, and
gave the Secretary discretion to convert all other Title 5 positions involved in direct
patient care.
AFGE remains very concerned about the fairness, workability and costs associated with
the Hybrid Title 38 system. We vigorously opposed the expansion provisions in the
Caregiver Act because it further erodes the civil services protections under the
Government-wide merit protection system, and takes away Title 5 appeal rights to
veterans seeking to enforce veterans’ preference rules. The promotion process for
Hybrid employees lacks equity, transparency and accountability. The process for
boarding new occupations is extremely slow. Since hiring is done locally, there is a
greater risk of inconsistencies in grade and duties for the same position at different
facilities.
We have also called on VHA to publish more guidance for translating military
experience as medicals and military corpsmen into hybrid positions such as health
technicians and licensed practical nurses.
Finally, the hybrid system is costly. The VA has allocated a large number of medical
dollars to hire more human resources personal to manage this flawed system that would
be better spent on direct patient needs.
Congressional Action Needed:


Conduct oversight of the Hybrid Title 38 hiring timeframes, human resources
personnel costs, and consistency and fairness of appointments and promotions
for hybrid positions.
Ease the transition of medics and military corpsmen to VHA hybrid Title 38
positions.
VA Physicians and Dentists
In 2004, Congress enacted legislation that reformed the pay system for VA physicians
and dentists (P.L. 108-445). One of the goals of that legislation was to reduce the VA’s
reliance on contract care providers by ensuring that VA provider pay was better aligned
with that of other health care employers.
Comprehensive oversight of P.L. 108-445 is long overdue. Questions have arisen
about all three components of the revised system: Base, Market and Performance Pay,
and how effective they have been at improving recruitment and retention of well
qualified physicians and dentists. For example, AFGE has long been concerned about
the lack of transparency in the peer panel process used to set market pay at each
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facility. We have seen widespread abuse at the facility and VISN level of the system for
setting performance pay, including enormous delays in issuing performance measures
and the use of inappropriate measures that were developed without any input from front
line clinicians or their representatives. Last year, AFGE secured a bill in the House to
require the VA to comply with the 2004 statutory requirement to issue national
guidelines for performance pay measures based on individual achievement.
Another underutilized VHA recruitment and retention tool is reimbursement for
continuing medical education (CME) to update skills and meet licensing requirements.
In 1991, Congress enacted legislation to provide VA board-certified physicians and
dentists with up to $1000 in annual CME reimbursement; this amount has not been
increased in a decade. As a result, the VA lags far behind many other health care
employers who offer this benefit. Other Title 38 and Hybrid Title 38 VA clinicians also
have CME expenses but reimbursement of their costs are completely within the
discretion of local management.
Our legislative proposal for a modest increase in the physician and dentist CME benefit
was introduced in the last Congress. While we were pleased to see provisions added to
extend this benefit to other VHA employees, we strongly opposed language endorsed
by the VA that would have left all CME reimbursement to the discretion of management,
and would have unduly restricted access to outside courses.
Congressional Action Needed:




Oversee of the implementation of the physician and dentist pay provisions in P.L.
108-445, and the executive pay provision for physicians and dentists in P.L. 111163.
Investigate impact of VA regulation that requires physicians and dentists to be on
a “24/7” schedule on facility policies for working overtime.
Enact legislation to require the Department to issue nationally uniform guidelines
for performance pay criteria, and to clarify that all performance pay criteria must
only be based on individual achievement, not facility-wide performance or factors
beyond the provider’s control.
Enact legislation to keep the VA competitive with other health care employers by
increasing the annual amount of continuing medical education reimbursement.
Fair Treatment of Veterans Canteen Service Employees
The Veterans Canteen Service (VCS) was established by Congress in 1946. VCS has
retail, food and vending operations in VA medical facilities and some benefits offices.
VCS operates with nonappropriated funds and its 3000 employees are appointed under
a separate section of Title 38 from other Title 38 health care employees. As a result,
VCS employees have no appeal rights through the negotiated grievance process or
Merit Systems Protection Board if faced with termination and other adverse actions.
Nor can they ever acquire permanent employment rights. (In contrast, Title 5 employees
acquire permanent status after one year, and most Title 38 employees acquire
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permanent status after two years.) In addition, the canteen workforce – which is
comprised of a disproportionate number of women and minorities -- is often paid less
than other VA employees performing the same duties, especially in food service.
Congressional Action Needed:


Enact legislation to provide Veterans Canteen Service employees appointed
under Section 7802 with full appeal and remedy rights under 5 USC Chapters 71
and 75.
Investigate use of Canteen employees to fill non-Canteen positions in VA
medical centers.
VA Outsourcing Hurts Employment Opportunities for Tomorrow’s Veterans: Time
to Insource!
The country’s economic woes continue to take an especially heavy toll on veterans’
employment opportunities. According to the most recent Bureau of Labor Statistics
figures, employment prospects for veterans remain much bleaker than for the general
population.
We commend the Administration for its leadership in promoting veteran employment in
the federal sector, including the Veterans Employment Initiative launched last year
(Executive Order 13518) to increase hiring of veterans and veteran jobs, and establish a
new interagency Council on Veterans Employment to be co-chaired by the VA and
Labor Department Secretaries.
We can think of no better way for Secretary Shinseki to lead the way on veterans’
employment than to make his own agency the model of model veteran employers. To
date, his efforts have been modest at best. The Secretary has identified small
businesses as a source of veterans’ employment and has stressed the importance of
jobs to achieve his laudable goal of eliminating veterans’ homelessness.
Unfortunately, VA’s widespread, largely illegal use of contractors in VA hospitals,
benefits offices and national cemeteries, and in information technology (e.g. document
scanning) has deprived veterans, including service-connected disabled veterans, of
thousands of entry level employment opportunities. Despite clear language in VA and
government wide appropriations laws that prohibit “direct conversions” (outsourcing
without public-private competition), VA has not taken steps to curb these illegal, harmful
practices. Here too, veterans lose on both ends: the loss of excellent employment
opportunities and lower quality VA services performed by contractors concerned more
about their bottom line than about the mission of the VA. For example, AFGE has
testified about national cemeteries maintained by contract lawn services that use
workers who behave inappropriately at these sacred locations, and about the poor
quality of hospital laundry and food services provided by contractors.
AFGE applauds OMB for requiring all federal agencies, including the VA to establish
inventories of all their current contracts to determine which should be cancelled and
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which should be insourced, i.e. brought back in to the agency. We believe that all
moderately skilled VA jobs should be insourced and reserved for veterans, especially
those recovering from a disability. Some of the other VA functions that should be
insourced, because they are more appropriately performed by the agency rather than a
for profit contractor, include: the “comp and pen” disability exams used to determine
service connection for VA benefits and health coverage, certain contract care
arrangements and the collection of third party health insurance payments.
At both the national and local levels, VHA continues to abuse its statutory “sharing”
authority to arrange for non-VA care, which is only supposed to be exercised in limited
circumstances, i.e. when VA care is not geographically accessible or cannot provide
care for a specialized medical need. We have been especially concerned about the
Project HERO pilot project in place in 4 VISNs, that increased VA health care
outsourcing in two significant ways: first, by increasing the number of veterans referred
outside the VA even when a VA facility was close by, and second, by using contractors
to arrange for care, a function historically done by care coordinators within the VA. We
were pleased to read on HERO’s website that the pilot will end after next year.
Notwithstanding Project HERO, AFGE believes that the VA will remain under great
pressure to contract out health care services at excessive, harmful levels. Therefore, we
urge Congress to remain vigilant on this front, for the adverse impact on both quality of
care and cost. VA central office does not appear to adequately monitor the amount of
contract care used at local facilities. Oversight of contract care expenditures is made
more difficult when facilities use funds from multiple accounts to pay for outside
services. AFGE urges implementation of the 2008 recommendations of the VA Office of
Inspector General to strengthen VHA controls over its fee basis program to reduce
payment, justification and authorization errors. As discussed earlier, medical centers
that are anticipating budget cuts are capping hiring and turning to agency nurses and
other contract care to close the gap.
Congressional Action Needed:






Expedite implementation of Inspector General recommendations to improve
controls over VHA’s fee basis program.
Monitor wrap up of Project HERO and plans for use of HERO “lessons learned”,
and the impact of the pilot on veterans’ care.
Investigate credentialing requirements for VA contract nurses, physicians and
other providers.
Reintroduce legislation to improve PA employment opportunities for military
medics and corpsmen who wish to transition to civilian employment in the VA.
Require the VA to provide guidance to and enforce sanctions against
management officials who violate federal outsourcing laws.
Expedite the development of VA’s insourcing plan, and evaluate its impact on
veterans’ job opportunities.
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Veterans’ Preference Overhaul: 21st Century Overhaul Needed
AFGE will continue to work with veterans’ groups this year on strengthening the
complex set of rules governing veterans’ preference in federal employment, through
both legislation and agency action. One of the most glaring gaps in veterans’ preference
rules is the lack of appeal rights for veterans applying for Title 38 VA health care jobs.
Legislation is needed to overturn a 2003 Federal Circuit court decision that held that the
right to appeal to the Merit Systems Protection Board and Labor Department under the
Veterans Employment Opportunities Act (VEOA) did not apply to an Army veteran who
was turned down for a VA psychiatrist job. It is hard to believe that the men and women
who are healing veterans at VA hospitals and clinics, including the many medics who
transition to VA physician, RN and physician assistant jobs after serving, lack the same
employment rights as other veterans seeking or working in Title 5 positions. It makes no
sense for a VA physician, RN, or LPN who has served his or her country to have fewer
employment opportunities than a veteran delivering health care at military hospitals or
other federal facilities.
A statutory fix is also needed to extend veterans’ preference rules to promotions and
reassignments, a gap that especially impacts veterans in the Reserves and National
Guard who take multiple leaves from their federal jobs.
A change in Labor Department regulations is needed to update the list of jobs restricted
to preference eligibles. These positions, such as custodian, have been an excellent
source of entry level employment for veterans at VA medical centers.(until VA
outsources them.) Others on the list, such as elevator operator and messenger, are out
of date.
Compliance depends on good data and familiarity with the law. OPM needs to collect
comprehensive data on agency efforts to recruit and retain veterans.
Training of federal hiring officials is also needed, to ensure greater compliance with
rules, and to properly rate the many relevant skills that veterans have acquired through
their military service. New regulations are needed to provide Title 38 employers with
similar guidance for crediting military service that is provided under Title 5.
Congressional Action Needed:





Extend coverage of the Veterans Employment Opportunities Act, including
appeal rights, to all hybrid and pure Title 38 employees.
Extend veterans’ preference laws to reassignments and promotions.
Update and expand the list of restricted positions for preference eligibles through
legislation and/or regulation.
Improve OPM data collection on agency veteran employment policies.
Increase training for federal hiring officials to increase compliance and improve
rating of military experience; Provide Title 38 guidance for crediting military
service.
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
Include loss of veterans’ employment opportunities as a criterion in the publicprivate competition process; Strengthen compliance with the existing regulatory
requirement that management give priority to preference eligibles when jobs that
are restricted to preference eligibles are outsourced.
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Department of Defense: Keeping Our Nation
Safe and Secure
Introduction
AFGE is honored to represent more than 200,000 federal employees in the Department
of Defense (DoD)—hard-working public servants whose skill and dedication were
instrumental in winning the Cold War and making the military capabilities of the United
States of America second to none.
AFGE’s DoD members perform an extraordinary variety of critical tasks for the
warfighters in Iraq and Afghanistan as well as for taxpayers back home—from
maintaining planes, ships, and tanks at constant states of readiness in depots and
arsenals to administering contracts for goods and services and trying to prevent
contractors from raiding the Treasury.
Protecting Warfighters and Taxpayers from False Efficiencies
On January 6, 2011, DoD announced, after an almost six month review, various
efficiency initiatives that would result in, over five years, “approximately $100 billion in
savings”—or, more precisely, reallocations of existing funding to other higher priority
objectives since the department’s budget would continue to increase, overall. More
than one-half of those savings, or $54 billion, come from capping the salaries and the
size of the civilian workforce. Less than $6 billion would be cut from service contractor
costs, even though DoD’s service contractor workforce is more than twice the size of
the civilian workforce and service contractor costs more than doubled during the Bush
Administration, reaching $200 billion annually.
This cap on the size of the civilian workforce would prevent the department from
rebalancing its overall workforce, pursuant to bipartisan reforms, after nearly twenty
years of indiscriminate privatization. New functions or increases in existing functions
would have to be contracted out even if the work should be performed by civilian
employees for cost or programmatic reasons. Inherently governmental, closely
associated with inherently governmental, and critical work that has been wrongly
outsourced would be left in the hands of contractors, as well as work that could be
performed more efficiently by civilian employees.
Once again, DoD is using civilian employees as a billpayer for ruinously expensive
service contractors. This arbitrary cap on the size of the civilian workforce is against the
law28, will increase costs to taxpayers, and undermine the capacity of warfighters.
By law, the department’s inherently governmental functions must be performed by civilian employees;
the department must use civilian employees to perform closely associated with inherently governmental
functions to the maximum extent practicable, the department must correct any unauthorized personal
services contracts, through elimination, modification, or insourcing, the department must give “special
consideration” to using civilian employees to perform functions that have been outsourced without
28
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AFGE strongly opposes this “efficiency (sic) initiative” and will work with Congress to
ensure that the civilian workforce is managed by workloads and budgets, consistent
with sourcing laws.
Promoting Sourcing Policies That Benefit Taxpayers and Warfighters
1. ENFORCE PROHIBITIONS AGAINST DIRECT CONVERSIONS: Consistent
with the law, no work last performed by DoD employees should be contracted out
without first conducting full cost comparisons.
The Congress, on a bipartisan basis, has, repeatedly, prohibited agencies from
perpetrating “direct conversions”—the term used to describe instances in which
agencies give work performed by federal employees to contractors without first
conducting full cost comparisons. In FY10, Congress closed all loopholes, prohibiting
all agencies from contracting out functions last performed by any number of federal
employees without first conducting full cost comparisons.
However, the Office of Management and Budget (OMB) has issued no guidance to
agencies to implement the new prohibition and DoD continues to perpetrate direct
conversions. No single factor is more responsible for the hollowing out of DoD’s civil
service than direct conversions. Congress should require the Obama Administration to
ensure that DoD complies with the statutory prohibitions against direct conversions.
Direct conversions are a particular problem for DoD’s Non-Appropriated Fund (NAF)
employees. The Government Accounting Office (GAO), in a controversial bid protest
decision involving the Air Force’s troubled Food Transformation Initiative, insists that
NAF employees are not covered by a law that requires DoD to conduct a formal cost
comparison prior to contracting out work performed by NAF employees. AFGE has
urged the department to administratively prevent direct conversions of NAF employees;
failure to do so would require AFGE to seek a legislative remedy.
2. INSIST THAT INHERENTLY GOVERNMENTAL / CLOSELY ASSOCIATED
WITH INHERENTLY GOVERNMENTAL / CRITICAL WORK BE PERFORMED
BY DOD EMPLOYEES: Ensure that functions that are inherently governmental,
closely related to inherently governmental functions, or critical are performed by
DoD employees— and insource such work if it has been wrongly contracted out.
The FY09 Defense Authorization Act requires OMB to develop a single governmentwide definition of “inherently governmental”. It is crucial that OMB’s proposed
redefinition correct longstanding problems that have resulted in the outsourcing of
functions that should have been reserved for federal employee performance, including
evaluation of contractors’ proposals and performance, preparation of budgets,
competition or are poorly performed; and the department must use the least costly form of personnel
consistent with military requirements and consider the advantages of shifting work between its civilian,
military, and contractor personnel.
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development of policies, and interpretation of regulations. A 2009 GAO report 29
indicated that:
DEFENSE ACQUISITIONS: Further Actions Needed to Address Weaknesses in DoD’s Management of
Professional and Management Support Contracts (GAO-10-39) November 2009.
29
According to GAO, “DoD and the military departments are to assess a number of risks when developing
an acquisition strategy for services, but DoD policy does not require an assessment of risks associated
with contractors closely supporting inherently governmental functions at two key decision points—when
approving acquisition strategies or issuing task orders. All 7 of the proposed acquisitions for professional,
administrative, and management services and more than 75 percent of the 64 related task orders we
reviewed required the contractor to provide services that closely supported inherently governmental
functions. A DoD instruction issued after the approval of the acquisition strategies we reviewed requires
that consideration be given to using civilian personnel rather than contractors, specifically when the
activities to be performed cannot be separated or distinguished from inherently governmental functions.
However, once the decision to rely on contractors is made, DoD personnel are not required to identify and
document risks posed when contractors are given responsibility for closely supporting inherently
governmental functions or take steps to mitigate those risks.
“The acquisition strategies and supporting documentation we reviewed included broad descriptions of the
services to be provided over the course of the acquisition, which included acquisition, contracting, and
policy development support services. Each of these services are identified in the FAR as examples of
those that closely support inherently governmental functions…”
“Although officials stated that documentation explaining the need to contract for these services in the past
was often unavailable, contracting officers and program officials indicated that reductions in government
personnel have led to the increased use of contractors to perform activities government personnel would
have performed in the past…
“According to DoD officials, personnel are not required to consider and document the risks associated
with contractors closely supporting inherently governmental functions when awarding contracts or issuing
task orders. Forty-nine of the 64 task orders we reviewed included services that, as described in the FAR,
are examples of activities that closely support inherently governmental functions, including support for
developing statements of work or contract documents; or budget preparation. Program managers and
contracting officers we spoke with acknowledged that contractors closely supported inherently
government functions, but none of the contract files identified them as such or indicated if any steps were
taken to address related risks…”
“The associated contract files for each of the task orders we reviewed included provisions specifically
prohibiting the contractor from performing inherently governmental functions. Program managers and
contracting officers informed us that they were aware of the importance of preventing contractors from
performing inherently governmental functions as required by the FAR. These officials acknowledged that
without contractor support, fulfilling mission requirements or conducting certain program activities could
not continue and some recognized that the close working relationships that develop between government
and contractor support personnel increase the risks of contractors performing inherently governmental
functions. To prevent contractors from performing such tasks, program and contracting officials indicated
that they reviewed task order requirements to ensure that they are within the scope of the acquisition and
do not require contractors to perform tasks that should be left only to government employees. Officials
further stated that when developing performance work statements they emphasize that the contractors’
role is to provide assistance to the government rather than make program decisions.
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a. Closely associated with inherently governmental functions are regularly
contracted out by DoD without any consideration of risk.
b. DoD acquisition personnel either don’t follow requirements to consider risk
in the context of contracting out closely associated with inherently
governmental functions or don’t even know the requirements exist.
c. These closely associated with inherently governmental functions used to
be performed by DoD employees.
d. These closely associated with inherently governmental functions are not
contracted out by DoD through OMB Circular A-76 privatization studies.
e. There is little if any consideration, whether for reasons of cost or risk, of
continuing to use DoD employees prior to the closely associated with
inherently governmental functions being contracted or after they have
already been contracted out.
It is believed that OMB will issue its proposed new definition of inherently governmental
in early 2011.30
“Program and contract personnel that we interviewed who were responsible for overseeing the work done
under the task orders were unaware, however, of the FAR requirement to provide greater scrutiny and an
enhanced degree of management oversight and surveillance when contracting for services that closely
support inherently governmental functions. Additionally, federal internal control standards require that
agencies conduct an assessment of risks, such as risks that result from heavy reliance on contractors to
perform critical agency operations. According to DoD officials, however, no specific guidance has been
provided by DoD that defines how contracting and program officials should conduct such enhanced
oversight. DPAP officials noted that additional information on how to oversee contractors that closely
support inherently governmental functions would be useful to the military departments, but acknowledged
that they have no ongoing efforts do so…”
30
Here are the points which AFGE has conveyed, repeatedly, to the Obama Administration with respect
to its redefinition of the inherently governmental term:
a. The new definition should reject targeting “commercial” functions for outsourcing.
b. The new definition should reduce confusion and uncertainty by expanding the very
narrow definition of inherently governmental currently in use.
c.
The new definition should be clear enough to withstand the politics and corruption that
have led to so much contracting out of functions that should be performed by DoD
employees; it should reflect the real-life lessons we have all learned over the last sixteen
years.
d. The new definition should take into account the realities of the federal workplace in which
managers lack the time and expertise to adequately review recommendations and
exercises of discretion by contractors.
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3. THROUGH INSOURCING, REQUIRE DOD TO GIVE DOD EMPLOYEES
OPPORTUNITIES TO PERFORM NEW AND OUTSOURCED WORK:
Consistent with the law, DoD should continue to insource work that is closely
associated with inherently governmental functions as well as functions that were
contracted out without competition or are being poorly performed.
Contractors initially claimed that the Efficiency Initiative announcement meant that
insourcing had failed, and their loyal propagandists in the trade press could not wait to
spit on insourcing’s grave. Actually, DoD officials believed that insourcing worked but
that the savings generated by using civilian employees in lieu of contractors could not
possibly offset the skyrocketing costs of the department’s ruinously expensive
contractors. In fact, according to DoD officials, 17,000 positions were added to the
department’s civilian workforce through insourcing during FY10, thus achieving
substantial savings for taxpayers and reducing the extent to which private interests are
making public decisions for the department.
The most serious threat to the department’s use of insourcing to rebalance the civilian
and contractor workforces and save money for taxpayers are threats to arbitrarily cap or
even reduce the civilian workforce, which would leave DoD with no alternative but to
rely on contractors—regardless of cost or risk. Title 10 prohibits the application of such
caps and reductions without any workforce planning. AFGE members are, as always,
prepared to make sacrifices in order to reduce the burden on taxpayers of running the
department—if contractors are finally required to make their fair share of sacrifices.
However, AFGE will insist that the civilian workforce be managed consistent with all
relevant laws (including the promotion of insourcing and the prohibition against direct
conversions).
Working under the close supervision of the Professional Services Council (PSC), a
major contractor lobbying group, Senator Scott Brown (R-MA) is leading the effort to gut
DoD’s promising insourcing effort. After an October 8, 2010, letter from PSC, Senator
Brown circulated an amendment to the FY11 National Defense Authorization Act that
would have made it easier for contractors to draft regulations, prepare budgets, and
e. The new definition should include strong mechanisms for transparency (i.e., determining
which contracts include functions that are inappropriate for contractor performance) and
enforcement (i.e., insourcing functions which should be performed by federal employees),
which are arguably even more important than how inherently governmental is defined.
f.
The new definition should be issued and enforced with sufficient force and accountability
to ensure actual compliance—no small concern given the systematic defiance (and
ignorance) of existing guidance against contracting out functions that should be reserved
for federal employee performance.
g. The new definition should address the many human capital issues related to protecting
functions that should be reserved for federal employee performance.
78
oversee other contractors; and made it far more difficult and complicated to insource
than it is to outsource. Fortunately, the Senate did not consider this amendment.
However, there is no doubt that contractors will use the provisions in this amendment to
fight against insourcing.
Curiously, Senator Brown went to work for the contractors after an exchange with DoD
Deputy Secretary of Defense William Lynn at an Armed Services Committee hearing,
on September 28, 2010, that should have made him an insourcing supporter. Senator
Brown asked this loaded question: “When work done by private contractors is absorbed
by DOD personnel and labeled inherently governmental, does it end up costing the
taxpayers more money because the federal employees' cost significantly more when
you take into account their retirement and health benefits? Is that an accurate
statement? Does it cost more?” The Deputy Secretary rephrased and then answered
the question: “Do -- you're asking do federal employees cost more than private?...As a
general statement, I don't think that's accurate, no.”
4. COMPILE CONTRACTOR INVENTORIES: Consistent with the law, DoD should
compile inventories of their service contracts so that we know, among other
things, how much contractors cost, how many employees are performing the
contract, and how well they are performing.
Unlike DoD employees, contractors have been shrouded in darkness. There is little that
DoD does not know about its civil servants. However, DoD historically has not bothered
to track its contractors. Managers don’t know how much contractors cost, whether they
are performing inherently governmental functions, or how many employees are paid by
the contract. Fortunately, Congress has required that DoD develop inventories of their
service contracts, thanks to a requirement that was imposed on DoD through a
provision in the FY08 Defense Authorization Bill.
These inventories can be used to reduce costs by identifying contracts that don’t benefit
taxpayers or identify functions that ought to be insourced because contractors are
performing functions that should be reserved for federal employee performance.
Unfortunately, not all parts of DoD have been as aggressive as the Department of the
Army in complying with the inventory requirement. Contractors, knowing that increased
visibility will inevitably mean increased accountability, have fought back against efforts
to make their work transparent.
GAO recently reported in 11-92, “At this point, DoD has been working to implement the
inventory requirements since the legislation was passed in 2008. With regard to
reviewing functions and activities reviewed in the inventories, the department’s efforts
are less mature. Given this early state of implementation, the inventories and
associated review processes are being used to varying degrees by the military
departments to help inform workforce decisions such as insourcing. Overall, the Army
has used the inventories to greater degree than the other military departments.” AFGE
will continue to work with the Congress to ensure DoD’s comprehensive compliance.
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5. EXTEND THE SUSPENSION AGAINST DOD STARTING UP ANY NEW OMB
CIRCULAR A-76 STUDIES: Extend the suspension on the use of the OMB
Circular A-76 privatization process until much-needed reforms have been
implemented and functions performed by contractors, including commercial
functions, are being targeted for insourcing.
The FY09 and FY10 Financial Services Appropriations Bills have included language
that would prevent new A-76 reviews from being launched by any federal agency.
Suspensions on new A-76 studies in DoD were included in the FY10 Defense
Authorization and Appropriations Bills.
Until the implementation of the reforms listed below, AFGE believes that this temporary
suspension on new A-76 reviews should be continued:
a) The establishment of a reliable system to track costs and savings from the A76 process that has been implemented, tested, and determined to be accurate
and reliable, over the long-term as well as the short-term.
b) Consistent with the law, the establishment of contractor inventories so that
agencies can track specific contracts as well as contracts generally.
c) Consistent with the law, the development and implementation of plans to
actively insource new and outsourced work, particularly functions that are closely
associated with inherently governmental functions, that were contracted out
without competition, and are being poorly performed.
d) Consistent with the law, the enforcement of government-wide prohibitions
against direct conversions.
e) The development and implementation of a formal internal reengineering
process that could be used instead of the A-76 process.
f) Revision of the rules governing the A-76 process to make it more consistent
with agencies’ missions, more accountable to taxpayers, and more fair to federal
employees.
1) Increase the minimum cost differential to finally take into account the
often significant costs of conducting A-76 studies, including preliminary
planning costs, consultants costs, costs of federal employees diverted
from their actual jobs to work on privatization studies, transition costs,
post-competition review costs, and proportional costs for agencies’
privatization bureaucracies (both in-house and out-house).31
31
It is accepted in the A-76 circular that it makes little sense to shift work back and forth without at least a
guesstimate that savings will be more than negligible. “The conversion differential precludes conversions
based on marginal estimated savings…” Unfortunately, the conversion differential--the lesser of 10% of
agency labor costs or $10 M, which is added to the non-incumbent provider—captures only “non-
80
2) Double the minimum cost differential for studies that last longer than 24
months—from the beginning of preliminary planning until the award
decision.32
3) Eliminate the arbitrary 12% overhead charge on in-house bids.33
Fighting Utilities Privatization
As part of the Clinton Administration’s wholesale outsourcing effort, DoD started a
campaign to privatize utilities (electric, gas, water and wastewater, and thermal steam).
The ostensible rationale is that the department is unable to secure the necessary
funding in the year-to-year appropriations process to keep the utilities repaired and
maintained. Therefore, the department must sell off the utilities to contractors who will
be responsible for making the necessary upgrades—paying for them with DoD’s dollars,
of course. DoD has approximately 1,500 utilities available for privatization, although
some are exempt for economic or security reasons.
Of course, paying contractors to repair and maintain the facilities and then to provide
the same services as before inevitably significantly increases costs to the department.
As GAO noted, “(t)he utility privatization program generally increases military utility
costs well above historical levels because the program leverages private sector capital
to achieve utility system improvements. To pay for these improvements over time,
quantifiable costs related to a conversion, such as disruption and decreased productivity”. See OMB
Circular A-76, Attachment B.
32
The biggest selling point for the revised A-76 circular was that standard privatization studies were
supposed to last no longer than a year. Of course, OMB insists that a standard competition has not
started until it has been formally announced, even though preliminary planning, the work conducted on an
A-76 study before formal announcement, can last several years. Even excluding preliminary planning A76 studies now routinely take longer 12 months. In fact, OMB reports that the average A-76 study takes
13.6 months to complete. COMPETITIVE SOURCING: Report on Competitive Sourcing Results Fiscal
Year 2007, May 2008, p. 9. Worse, the length is gradually increasing over time. In other words, the more
the A-76 process is being used, the longer it is taking. The A-76 circular is based on standard
competitions lasting no longer than a year except in unusual circumstances. Clearly, the conversion
differential should be increased to take into account the growing length of A-76 studies.
33
All in-house bids are slapped with an overhead charge, which works out to 12% of personnel costs.
This significant impediment to in-house bids should be eliminated. As the Department of Defense
Inspector General reported about the now infamous A-76 privatization review at the Defense Finance and
Accounting Service, “We do not agree that the standard factor for overhead costs is a fair estimate for
calculating overhead. We believe that DoD must develop a supportable rate or alternative methodologies
that permit activities to compute reasonable overhead cost estimates.” “Public-Private Competition for the
Defense Finance and Accounting Service Military Retired and Annuitant Pay Functions”, Report D-2003056 (March 2003). Neither reform has been undertaken. Consequently, most if not all in-house bids are
unfairly biased against federal employees.
81
DOD’s funding obligations will likely increase, not decrease, by hundreds of millions of
dollars…”34
The statute that establishes the rules for privatization of utilities nominally requires DoD
to first conduct a quick-and-dirty public-private cost comparison. 35 However, as GAO
reported, DoD cost estimates are biased towards privatization; if done properly in most
instances, the utilities would have been retained in-house.36
This effort is particularly difficult to defend when utilities targeted for privatization are not
in disrepair or would merely require modest infusions of funding to be satisfactorily
refurbished. It wasn’t until last year that Congress seriously challenged the utilities
privatization program. Working closely with AFGE’s Local, Representative Maurice
Hinchey (D-NY) secured inclusion in the FY10 Defense Appropriations Bill of a provision
that would prevent the privatization of utilities at the United States Military Academy,
West Point.37 It is hoped that this hard-fought victory will inspire similar efforts,
particularly when the utilities being considered for privatization, as in the case of West
Point, are not in need of significant repairs.
Preserving DoD’s National Security-Critical Industrial Facilities (Arsenals and
Depots)
a. Arsenals, which manufacture ordnance and equipment, including howitzers and
mounts:
The Rock Island Arsenal-Joint Manufacturing and Technical Center (RIA-JMTC)
continues to contract out work performed by DoD employees—inspectors,
planner/programmers, method personnel and machinists—without first conducting cost
comparisons required by law to determine if contractor performance actually promotes
the interests of taxpayers.38
34
Government Accountability Office, DEFENSE INFRASTRUCTURE: Management Issues Requiring
Attention in Utility Privatization (GAO-05-433), May 2005.
35
10 U.S.C. 2688
GAO, Ibid. “We reviewed seven utility privatization project analyses and identified inaccuracies,
unsupported cost estimates, and noncompliance with guidance for performing the analyses. The cost
estimates in the analyses we reviewed generally favored the privatization option by understating longterm privatization costs or overstating long-term government ownership costs. In five of the seven
analyses, making adjustments to correct problems we identified would change the outcomes to show that
government ownership, rather than privatization, would be less costly in the long term. In the remaining
two cases, the analyses were not reliable because they did not reflect the actual utility system
improvements to be performed by the contractor.”
36
37
P.L. 111-118, Section 8122.
38
AFGE has two compelling legal arguments:
82
RIA-JMTC managers have refused to respond to correspondence from AFGE’s Local
that calls them to account for their violations of law. Further, senior officials in the
Department of the Army have refused to meet with AFGE’s National President to
discuss the union’s concerns.
In November 2010, AFGE learned that the Army has ordered improvements on a
howitzer weapons system that was previously produced at RIA-JMTC. The arsenal,
however, may be bypassed for its part of the work as a result of decisions by the Army
Office for Acquisition. The AFGE locals in Rock Island have sought clarification on RIAJMTC’s ability to bid and were told, through their congressional representatives, that
RIA-JMTC could compete for the manufacturing part of the work. AFGE is seeking
information from Congress and the Army on what the rules for competition will be.
b. Depots, which are responsible for repairing and maintaining ships, tanks, and planes:
a. Direct Conversions: RIA-JMTC's use of contractor employees to perform work previously done by DoD
employees without conducting a public-private cost comparison under OMB Circular A-76 is a direct
conversion in violation of OMB Circular A-76, the FY06 Defense Authorization Act, and the FY10
Consolidated Appropriations Act.
These rules apply even though no DoD employees are losing their jobs because of this action. The A-76
circular does not contain a "no harm, no foul" exception, and both statutory provisions refer to the function
being performed, not the DoD employee positions performing those functions. The fact that a function, or
a portion of a function, previously performed by DoD employees is now performed by contractor
employees is a violation of the letter and intent of these provisions.
b. Illegal Personal Services Contract: The purpose of the civil service system is to hire federal employees
based on merit instead of political connections, provide a preference for federal jobs to military veterans,
and to provide government with stability and continuity from one administration to another. Federal
agencies are required to hire employees under the civil service system with a few narrow exceptions.
When an agency treats contractor employees as federal employees, the agency is doing an illegal endrun around the civil service system. This kind of end run allows an agency to ignore merit principles,
veterans preference, and federal pay and health benefit requirements.
RIA-JMTC is essentially treating the contractor employees as DoD employees, and HRU is merely
providing bodies to fill DoD employee slots. This arrangement results in an illegal personal services
contractual relationship between RIA and the HRU employees. Army management claims that this
contract is not a personal services contract on its terms. However, under the Federal Acquisition
Regulation, a contract can become a personal services contract if certain factors are present.
At RIA, the contractor employees work at the same site using the same equipment as DoD employees.
The work product of the federal and HRU employees is identical, so that HRU's work cannot be
distinguished for purposes of quality assurance. The need for this work has and will last far beyond the
one year limit allowed by the regulations, and agency management has to supervise the contractor
employees in order to retain control of the function. RIA-JMTC also participated in the hiring process and
reviewed the salary and benefits offered to HRU employees before awarding the contract, which is highly
unusual for a government contract.
83
The FY09 Defense Authorization Bill included a requirement that DoD commission an
independent, quantitative assessment of the organic capability that will be required to
provide depot-level maintenance in the post-reset environment, which would then be
reviewed by GAO.39 It is expected that the assessment will be released in mid-February
2011.
39
P.L. 110-417, Section 322.
STUDY ON FUTURE DEPOT CAPABILITY.
(a) Study Required- Not later than 30 days after the date of the enactment of this Act, the
Secretary of Defense shall enter into a contract with an independent research entity that is a notfor-profit entity or a federally-funded research and development center with appropriate expertise
in logistics and logistics analytical capability to carry out a study on the capability and efficiency of
the depots of the Department of Defense to provide the logistics capabilities and capacity
necessary for national defense.
(b) Contents of Study- The study carried out under subsection (a) shall-(1) be a quantitative analysis of the post-reset Department of Defense depot capability
required to provide life cycle sustainment of military legacy systems and new systems
and military equipment;
(2) take into consideration direct input from the Secretary of Defense and the logistics
and acquisition leadership of the military departments, including materiel support and
depot commanders;
(3) take into consideration input from regular and reserve components of the Armed
Forces, both with respect to requirements for sustainment-level maintenance and the
capability and capacity to perform depot-level maintenance and repair;
(4) identify and address each type of activity carried out at depots, installation
directorates of logistics, regional sustainment-level maintenance sites, reserve
component maintenance capability sites, theater equipment support centers, and Army
field support brigade capabilities;
(5) examine relevant guidance provided and regulations prescribed by the Secretary of
Defense and the Secretary of each of the military departments, including with respect to
programming and budgeting and the annual budget displays provided to Congress; and
(6) examine any relevant applicable laws, including the relevant body of work performed
by the Government Accountability Office.
(c) Issues to Be Addressed- The study required under subsection (a) shall address each of the
following issues with respect to depots and depot capabilities:
(1) The life cycle sustainment maintenance strategies and implementation plans of the
Department of Defense and the military departments that cover-(A) the role of each type of maintenance activity;
84
(B) business operations;
(C) workload projection;
(D) outcome-based performance management objectives;
(E) the adequacy of information technology systems, including workload
management systems;
(F) the workforce, including skills required and development;
(G) budget and fiscal planning policies; and
(H) capital investment strategies, including the implementation of section 2476 of
title 10, United States Code.
(2) Current and future maintenance environments, including-(A) performance-based logistics;
(B) supply chain management;
(C) condition-based maintenance;
(D) reliability-based maintenance;
(E) consolidation and centralization, including-(i) regionalization;
(ii) two-level maintenance; and
(iii) forward-based depot capacity;
(F) public-private partnerships;
(G) private-sector depot capability and capacity; and
(H) the impact of proprietary technical documentation.
(3) The adequate visibility of the maintenance workload of each military department in
reports submitted to Congress, including-(A) whether the depot budget lines in current budget displays accurately reflect
depot level workloads;
(B) the accuracy of core and 50/50 calculations;
(C) the usefulness of current reporting requirements to the oversight function of
senior military and congressional leaders; and
85
(D) whether current budgetary guidelines provide sufficient financial flexibility
during the year of execution to permit the heads of the military departments to
make best-value decisions between maintenance activities.
(4) Such other information as determined relevant by the entity carrying out the study.
(d) Availability of Information- The Secretary of Defense and the Secretaries of each of the
military departments shall make available to the entity carrying out the study under subsection (a)
all necessary and relevant information to allow the entity to conduct the study in a quantitative
and analytical manner.
(e) Reports to Committees on Armed Services(1) INTERIM REPORT- The contract that the Secretary enters into under subsection (a)
shall provide that not later than one year after the commencement of the study conducted
under this section, the chief executive officer of the entity that carries out the study
pursuant to the contract shall submit to the Committees on Armed Services of the Senate
and House of Representatives an interim report on the study.
(2) FINAL REPORT- Such contract shall provide that not later than 22 months after the
date on which the Secretary of Defense enters into the contract under subsection (a), the
chief executive officer of the entity that carries out the study pursuant to the contract shall
submit to the Committees on Armed Services of the Senate and House of
Representatives a final report on the study. The report shall include each of the following:
(A) A description of the depot maintenance environment, as of the date of the
conclusion of the study, and the anticipated future environment, together with the
quantitative data used in conducting the assessment of such environments under
the study.
(B) Recommendations with respect to what would be required to maintain, in a
post-reset environment, an efficient and enduring Department of Defense depot
capability necessary for national defense.
(C) Recommendations with respect to any changes to any applicable law that
would be appropriate for a post-reset depot maintenance environment.
(D) Recommendations with respect to the methodology of the Department of
Defense for determining core logistics requirements, including an assessment of
risk.
(E) Proposed business rules that would provide incentives for the Secretary of
Defense and the Secretaries of the military departments to keep Department of
Defense depots efficient and cost effective, including the workload level required
for efficiency.
(F) A proposed strategy for enabling, requiring, and monitoring the ability of the
Department of Defense depots to produce performance-driven outcomes and
meet materiel readiness goals with respect to availability, reliability, total
ownership cost, and repair cycle time.
86
Protecting Taxpayer Dollars
DoD, in coordination with the Defense Contract Audit Agency (DCAA), announced in
October 2010 that it has increased the minimum dollar thresholds for contracts that can
be referred to DCAA for examination and review prior to being awarded. The new
thresholds are a 10-fold increase from the previous amounts: $100 million for cost-type
proposals, up from $10 million; and $10 million for fixed-price proposals, up from
$700,000. With these new thresholds, the potential for DCAA to conduct proper
oversight of Pentagon contracts has decreased dramatically. DoD spending on federal
contractors more than doubled between 2002 and 2008 – to $380 billion – meaning
DCAA needs to be exercising greater oversight, not less. This pro-contractor change
was made without any input from the DoD Inspector General or GAO.
Defense leaders claim the price thresholds were increased to better align workload
requirements with available resources. However, increasing the thresholds only
guarantees that tens of billions of dollars in DoD contracts that fall under the thresholds
will be awarded without any examinations to determine if the government is getting the
best value for the money. This change does nothing to address one of the biggest
complaints from GAO and the IG – that contractors have too much influence over the
reviews our Defense auditors are tasked with performing. In fact, raising these
thresholds just gives the contractors more free reign to waste taxpayer dollars without
any threat of oversight.
(G) Comments provided by the Secretary of Defense and the Secretaries of the
military departments on the findings and recommendations of the study.
(f) Comptroller General Review- Not later than 90 days after the date on which the report under
subsection (e)(2) is submitted, the Comptroller General shall review the report and submit to the
Committees on Armed Services of the Senate and House of Representatives an assessment of
the feasibility of the recommendations and whether the findings are supported by the data and
information examined.
(g) Definitions- In this section:
(1) The term `depot-level maintenance and repair' has the meaning given that term under
section 2460 of title 10, United States Code.
(2) The term `reset' means actions taken to repair, enhance, or replace military
equipment used in support of operations underway as of the date of the enactment of this
Act and associated sustainment.
(3) The term `military equipment' includes all weapon systems, weapon platforms,
vehicles and munitions of the Department of Defense, and the components of such items.
87
Eliminating Discriminatory Requirements for Security Guards
In October 2006, the Army issued a physical testing regulation (AR-190-56) for Army
Civilian Police and Security Guards, which was subsequently broadened to include all
DoD Security Guards.
This regulation conflicted with earlier Congressionally-imposed requirements that DoD
hire qualified veterans who had service-connected disabilities. Hundreds of security
guards throughout DoD could face strong disciplinary measures, including termination,
for being unable to comply with this new regulation, including 25 dedicated security
guards at Fort Benning.
DoD security guards who fail the test may be transferred to other positions, but it is not
certain whether the other positions will have comparable salaries or possibilities of
advancement.
Many of the adversely affected DoD security guards have excellent work evaluations
and their performance is not at all affected by their service-connected disabilities.
Indeed, these dedicated, highly experienced public servants and first responders have
provided unsurpassed protection to our military bases and the public. They played a
critical role in protecting us after the 9/11 terrorist attacks because they had the
experience and institutional expertise to effectively screen entrance into military bases
under heightened security threats.
Quite simply, the new physical testing regulation is not relevant to the duties of DoD
security guards. Under the new regulation, employees are required every year to prove
that they can run 1.5 miles in 17.30 minutes, sprint 330 yards in 81 seconds, do 21
pushups in two minutes and 29 sit-ups in two minutes.
If the DOD identifies a future need for a higher level of physical fitness to perform some
duties, it can realign current positions to impose the higher standards where they are
relevant to successful performance. However, security guards already performing
these jobs should be covered by a grandfather clause. They are also entitled to
reasonable accommodation for age and disability in the form of alternate testing events,
such as bicycling and swimming. Security guards should be provided adequate
advance notice of testing dates so they may prepare for the fitness tests after receiving
medical clearance.
By imposing this unnecessary regulation, DoD is breaking its promise to the veterans
with service-connected injuries hired under this special authority. As the federal
government’s largest employer of veterans, DoD should act consistently with
government-wide veterans’ preference policies, as well as its own ostensible
commitment “to providing every disabled veteran who wants to serve our country as a
DoD civil servant the opportunity to do so.”
88
Federal Prisons
Summary
Over the past several years, the Bureau of Prisons (BOP) correctional institutions have
become increasingly dangerous places to work. The savage murder of Correctional
Officer Jose Rivera on June 20, 2008, by two prison inmates at the United States
Penitentiary in Atwater, CA; the brutal stabbing of a correctional officer on November 1,
2009, by a prison inmate at the United States Penitentiary in Lewisburg, PA; and the
more than 350 vicious inmate-on-staff assaults that have occurred at various BOP
facilities since the murder of Correctional Officer Rivera illustrate that painful reality.
In addition, BOP correctional officers and staff have become increasingly demoralized
because of: (1) the failure of the White House and Congress during the 2001-2009 time
period to provide the necessary financial and programmatic tools to improve the safety
and security of BOP prisons, and (2) the adoption by BOP management of unsound
operational policies and practices.
AFGE strongly urges the Obama administration and the 112th Congress to:
1.
Increase federal funding of BOP to remedy the serious correctional officer
understaffing and prison inmate overcrowding problems that are plaguing BOP prisons.
2.
Direct BOP to adopt needed management policy changes for improving the
safety and security of BOP correctional institutions.
3.
Support the Federal Prison Industries (FPI) prison inmate work program.
4.
Continue the existing prohibition against the use of federal funding for publicprivate competition under OMB Circular A-76 for work performed by federal employees
of BOP and FPI.
5.
Prevent BOP from meeting additional bed space needs by incarcerating prison
inmates in private prisons.
6.
Oppose any effort to statutorily redefine the term “law enforcement officer” for
pay and retirement purposes to exclude BOP prison staff.
7.
Exempt federal law enforcement officers, including BOP correctional officers and
staff, who separate from federal government service after age 50 from the present law’s
10% additional tax penalty for early withdrawals from the Thrift Savings Plan (the third
component of the Federal Employees Retirement System or FERS).
89
Discussion
1.
Increase federal funding of BOP to remedy the serious correctional officer
understaffing and prison inmate overcrowding problems that are plaguing BOP
prisons.
More than 210,000 prison inmates are confined in the 115 BOP correctional institutions
today, up from 25,000 in 1980, 58,000 in 1990, and 145,000 in 2000. By the end of
2011, it is expected there will be 215,000 inmates incarcerated in BOP institutions
nationwide.
This explosion in the federal prison inmate population is the direct result of Congress
approving stricter anti-drug enforcement laws involving mandatory minimum sentences
in the 1980s, as documented in the History of Mandatory Minimums, a study produced
by the Families Against Mandatory Minimums Foundation (FAMM).



The Comprehensive Crime Control Act of 1984 created a mandatory 5-year
sentence for using or carrying a gun during a crime of violence or a drug
crime (on top of the sentence for the violence itself), and a mandatory 15-year
sentence for simple possession of a firearm by a person with three previous
state or federal convictions for burglary or robbery.
The 1986 Anti-Drug Abuse Act established the bulk of drug-related mandatory
minimums, including the five- and 10-year mandatory minimums for drug
distribution or importation, tied to the quantity of any “mixture or substance”
containing a “detectable amount” of the prohibited drugs most frequently
used today.
The Omnibus Anti-Drug Abuse Act of 1988 created more mandatory
minimums that were targeted at different drug offences. At one end of the
drug distribution chain, Congress created a mandatory minimum of five years
for simple possession of more than five grams of “crack” cocaine. (Simple
possession of any amount of other drugs – including powder cocaine and
heroin – remained a misdemeanor with a mandatory 15-day sentence
required only for a second offense.) At the other end, Congress doubled the
existing 10-year mandatory minimum for anyone who engages in a continuing
criminal enterprise, requiring a minimum 20-year sentence in such cases.
The number of federal correctional officers who work in BOP prisons, however, is failing
to keep pace with this tremendous growth in the prison inmate population. By the end
of FY 2010, the BOP system was staffed at an 89% level (35,839 of 40,279 authorized
positions were filled), as contrasted with the 95% staffing percentage levels in the mid1990s. This 89% staffing level is below the 90% staffing level that BOP believes to be
the minimum staffing level for maintaining the safety and security of BOP prisons. In
addition, the current BOP inmate-to-staff ratio is 4.9 inmates to 1 staff member, as
contrasted with the 1997 inmate-to-staff ratio of 3.7 to 1.
90
At the same time, prison inmate overcrowding is an increasing problem at BOP
institutions despite the activation of new prisons over the past few years. The BOP
prison system today is overcrowded today by about 37%, up from 31.7% as of January
1, 2000.
These serious correctional officer understaffing and prison inmate overcrowding
problems are resulting in significant increases in prison inmate assaults against
correctional officers and staff. Illustrations of this painful reality include:



The savage murder of Correctional Officer Jose Rivera on June 20, 2008, by
two prison inmates at the United States Penitentiary in Atwater, CA.
The brutal stabbing of a correctional officer on November 1, 2009, by a prison
inmate at the United States Penitentiary in Lewisburg, PA.
The more than 350 vicious inmate-on-staff assaults that have occurred at
various BOP facilities since the murder of Correctional Officer Rivera 19
months ago.
AFGE has long been concerned about the safety and security of the correctional
officers and staff who work at BOP institutions. But the significant increase in prison
inmate assaults against correctional officers and staff has made it clear that the BOP
correctional officer understaffing and prison inmate overcrowding problems must be
solved.
Therefore, AFGE strongly urges the Obama administration and the 112 th Congress to:


Increase federal funding of the BOP Salaries and Expenses account so BOP
can hire additional correctional staff to return to the 95% staffing percentage
levels of the mid-1990s.
Increase federal funding of BOP Buildings and Facilities account so BOP can
build new correctional institutions and renovate existing ones to reduce
inmate overcrowding to at least the 31.7% level of the late-1990s.
2.
Direct BOP to adopt needed management policy changes for improving the
safety and security of BOP prisons.
A few days after the June 20, 2008, stabbing murder of Correctional Officer Jose Rivera
at USP Atwater, John Gage, AFGE National President, and Bryan Lowry, President of
the AFGE National Council of Prison Locals, met with BOP Director Harley Lappin to
strongly urge that BOP adopt various policy changes for improving the safety and
security of BOP institutions. Among other changes, they urged that:
(a)
High security penitentiaries place two correctional officers in each housing unit
plus three or four additional officers to function as “rovers” that provide assistance to the
housing unit staff, particularly during the evening watch shift (3:00 p.m. to 11:00 p.m.),
and medium and low security institutions place at least one correctional officer in each
housing unit on all shifts.
91
High security penitentiaries currently assign only one correctional officer to each
housing unit. This unsound correctional practice is particularly dangerous during the
evening watch shift when only one officer is available to perform the 4:00 p.m. inmate
count and the 11:00 p.m. inmate lockup. (Correctional Officer Jose Rivera was
murdered while performing the 4:00 p.m. inmate count alone.)
Medium and low security institutions since 2005 are no longer required to assign one
correctional officer in each housing unit. This policy change has resulted in an unsound
correctional practice being implemented in which only one officer is assigned to
supervise two – and in some cases three – housing units during the various shifts. This
practice leaves housing units unsupervised for long periods of time, thereby providing
violent inmates the time to make homemade weapons, to organize and plan gang
activity, to carry out assaults on other inmates, and to move contraband undetected
throughout the institution.
On July 15, 2008, BOP issued a directive that authorized two additional officers per high
security penitentiary for evening watch (daily) and for day watch on the weekends and
federal holidays. The officers working these posts are intended to function as “rovers”
to provide assistance to housing unit staff. (The decision was to be made locally, at
each facility, regarding how best to staff these positions, that is, whether the sick and
annual roster can be used, overtime authorized, or whether new staff must be hired.)
The July 15, 2008, directive was silent with regard to medium and low security
institutions.
AFGE believes the July 15, 2008, BOP directive is totally inadequate. The safety of
correctional officers and prison inmates requires, at the very least, two correctional
officers in each housing unit on the evening watch shift in high security penitentiaries,
and at least one officer per housing unit on all shifts in medium and low security
institutions.
AFGE strongly urges the Obama administration and the 112th Congress to direct BOP
to reinstitute the staffing practice of the 1990s: authorizing two correctional officers per
housing unit, plus three or four additional officers to function as “rovers” that provide
assistance to the housing unit staff. This staffing practice was standard until a few
years ago when BOP management instituted the so-called Mission Critical policy effectively a “staff reduction” policy under which only positions deemed absolutely
critical to the BOP mission were filled.
(b)
All correctional officers be issued protective vests that are stab-proof and lightweight, and can be worn comfortably under a uniform.
In its July 15, 2008, directive, BOP announced that it will begin making protective vests
available to staff – first at high-security penitentiaries, and then at all institutions.
However, BOP has adopted a somewhat overbroad implementation policy with regard
to these protective vests. If a staff member chooses to wear a protective vest, he or she
must wear the vest at all times and in all locations – even when it is obviously
92
unnecessary. For example, some wardens are ordering correctional staff to wear their
protective vest to annual refresher training at facilities that are a half mile away from the
secure prison facility. In addition, the failure to wear the voluntarily selected vest at all
times and in all locations may be cause for a disciplinary action. This unreasonable
policy is resulting in correctional staff returning their vests and not wearing them in
obviously dangerous locations, such as a housing unit, special housing unit, or
compound officer post.
AFGE strongly urges the Obama administration and the 112th Congress to direct BOP
to continue making protective vests available to correctional staff but to adopt a more
reasonable implementation policy.
(c)
Correctional officers working in housing units, compound posts, and high security
areas of BOP prisons be equipped with and trained in the use of non-lethal weaponry,
such as batons, pepper spray, and/or TASER guns. Training should include the
appropriate use of such non-lethal weaponry so they are not used as a “first strike”
response before other protective tactics are considered or attempted.
Unfortunately, BOP opposed – and continues to oppose - providing correctional officers
with batons, pepper spray, and/or TASER guns. BOP argues that it would send the
wrong message to prison inmates, namely that such non-lethal weaponry is necessary
because conditions at BOP institutions have significantly worsened.
But AFGE believes Correctional Officer Rivera’s brutal murder and the increasing
number of inmate assaults on officers are sending a strong message to BOP
management: Conditions at penitentiaries and other institutions have worsened. They
are more violent than a few years ago because of serious correctional officer
understaffing and prison inmate overcrowding – and because correctional officers are
being forced to control more aggressively dangerous offenders, including more gangaffiliated inmates.
AFGE strongly urges the Obama administration and the 112th Congress to direct BOP
to institute a new non-lethal weaponry policy under which correctional officers in
potentially dangerous situations are provided batons, pepper spray and/or TASER guns.
Such non-lethal weapons are vitally necessary to help prevent further serious inmateon-officer assaults.
3.
Support the Federal Prison Industries (FPI) prison inmate work program.
The increasingly violent and dangerous environment in which BOP correctional officers
and staff work is the primary reason why AFGE strongly supports the FPI prison inmate
work program.
The FPI prison inmate work program is an important management tool that federal
correctional officers and staff use to deal with the huge increase in the BOP prison
inmate population. It helps keep about 18,972 prison inmates – or about 16% of the
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eligible inmate population – productively occupied in labor-intensive activities, thereby
reducing inmate idleness and the violence associated with that idleness. It also provides
strong incentives to encourage good inmate behavior, as those who want to work in FPI
factories must maintain a record of good behavior and must have completed high
school or be making steady progress toward a General Education Degree (GED).
In addition, the FPI prison inmate work program is an important rehabilitation tool that
provides federal inmates an opportunity to develop job skills and values that will allow
them to reenter – and remain in – our communities as productive, law-abiding citizens.
The Post-Release Employment Project (PREP), a multi-year study of the FPI prison
inmate work program carried out and reported upon in 1996 by William Saylor and
Gerald Gaes, found that the FPI prison inmate work program had a strongly positive
effect on post-release employment and recidivism. Specifically, the study results
demonstrated that:


In the short run (i.e., one year after release from a BOP institution), federal
prison inmates who had participated in the FPI work program (and related
vocational training programs) were: (1) 35% less likely to recidivate than
those who had not participated, and (2) 14% more likely to be employed than
those who had not participated.
In the long run (i.e., up to 12 years after release from a BOP institution),
federal prison inmates who participated in the FPI work program were 24%
less likely to recidivate than those who had not participated in the FPI work
program. (PREP: Training Inmates Through Industrial Work Participation, and
Vocational and Apprenticeship Instruction, by William Saylor and Gerald
Gaes, Office of Research and Evaluation, Federal Bureau of Prisons,
September 24, 1996.)
Unfortunately, over the past nine years the FPI prison inmate work program has
experienced a significant decline in the percentage of eligible BOP inmates employed
as a result of limitations imposed by Congress and the FPI Board of Directors on FPI’s
mandatory source authority relating to Department of Defense and federal civilian
agencies’ purchases from FPI. While the FPI program employed 25% of the eligible
BOP inmate population in FY 2000, it is currently employing only 16% of that
population. Indeed, 29,650 prison inmates would be employed now – not 18,972 – if the
FPI program were currently employing 25% of the eligible BOP inmate population.
To make matters worse, Section 827 in the National Defense Authorization Act for FY
2008 (P.L. 110-181) created another substantial impediment to the FPI program’s ability
to keep BOP inmates productively occupied in labor-intensive work activities.
Specifically, Section 827 reduced the applicability of the FPI mandatory source authority
with regard to Department of Defense (DoD) purchases of FPI-made products. While
the FPI Board of Directors in 2003 administratively ended the application of mandatory
source authority for those products where FPI’s share of the Federal market exceeded
20%, Section 827 ended the application of the mandatory source authority with regard
to DoD purchases of FPI-made products for those products where FPI’s share of the
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DoD market is only 5%. Initial analyses of the effect of this significant reduction from
20% to 5% estimated that it will result in a potential loss of up to $241 million in FPI
sales revenues and 6,500 FPI prison inmate jobs.
An early indicator of this reduction’s adverse effect on FPI was the July 15, 2009,
announcement by Paul Laird, the FPI Chief Operating Officer, that FPI was closing
factory operations at 14 BOP prisons: USP Coleman I &II (Florida), FCI Victorville II
(California), USP Florence (Colorado), FCI Talladega (Alabama), FCI Big Spring
(Texas), FCI Williamsburg (South Carolina), FCI Estill (South Carolina), FCI Sandstone
(Minnesota), FCI Fairton (New Jersey), FCI Otisville (New York), FCI Marianna
(Florida), FCI Phoenix (Arizona), and FCC Allenwood (Pennsylvania). In addition to
these closings, FPI announced that it was also downsizing operations at four other BOP
prisons: FCC Lompoc (California), FPC Alderson (West Virginia), FCC Butner (North
Carolina), and USP Leavenworth (Kansas). According to COO Laird, “these actions
were necessary to reduce our excess production capacity and staffing to a level
consistent with the current and forecasted business activity.”
The latest indicator of this reduction’s adverse effect on FPI is the July 13, 2010,
“Memorandum to All UNICOR Staff” by FPI Chief Operating Officer Laird
announcing the closing of FPI factories at FCC Lompoc (California), FCI Herlong
(California), FCI Three Rivers (Texas), FCI Oxford (Wisconsin), FCI Morgantown (West
Virginia), FPC Alderson (West Virginia), FCC Butner (North Carolina), FCI Elkton
(Ohio), and FCI Fort Dix (New Jersey). Factories at FCI Bennettsville (South Carolina),
FCI McKean (Pennsylvania), and FCC Victorville (California) are being downsized.
According to COO Laird, these actions were necessary because “the continued impact
of adverse legislation and a struggling economy have contributed to two consecutive
years of negative earnings resulting in a substantial reduction of our cash. Clearly,
[these new] cost control actions must be taken to bring production capacity and
expenses in line with our projected level of business.”
4.
Continue the existing prohibition against the use of federal funding for
public-private competition under OMB Circular A-76 for work performed by
federal employees of BOP and FPI.
This final Consolidated Appropriations Act, FY 2010 (P.L. 111-117), which contained the
FY 2010 Commerce-Justice-Science (CJS) appropriations bill, includes a general
provision - Section 212 - to prohibit the use of FY 2010 funding for a public-private
competition under OMB Circular A-76 for work performed by federal employees of the
BOP and FPI. Here is the exact language:
“Sec. 212. None of the funds appropriated by this Act may be
used to plan for, begin, continue, finish, process, or approve a
public-private competition under the Office of Management and
Budget Circular A-76 or any successor administrative regulation,
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directive, or policy for work performed by employees of the Bureau
of Prisons or of Federal Prison Industries, Incorporated.”
AFGE strongly urges the Obama administration and the 112th Congress to include the
Section 212 language in the FY 2011 and FY 2012 CJS appropriations bills because:
(a)
Competing these BOP and FPI employee positions would not
promote the best interests or efficiency of the federal government with regard to
ensuring the safety and security of federal BOP prisons. Federal correctional
officers and other federal employees who work for BOP and FPI are performing
at superior levels. It therefore would be ill-advised to compete their positions
merely to meet arbitrary numerical quotas.
(b)
Various studies comparing the costs of federally operated BOP prisons
with those of privately operated prisons have concluded – using OMB
Circular A-76 cost methodology – that the federally operated BOP prisons
are more cost effective than their private counterparts. For example, a
study comparing the contract costs of services provided by Wackenhut
Corrections Corporation (now The Geo Group) at the Taft Correctional
Institution in California with the cost of services provided in-house by
federal employees at three comparable BOP prisons (Forrest City, AR;
Yazoo City, MS; and Elkton, OH) found that “the expected cost of the
current Wackenhut contract exceeds the expected cost of operating a
Federal facility comparable to Taft….” (Taft Prison Facility: Cost
Scenarios, Julianne Nelson, Ph.D, National Institute of Corrections, U.S.
Department of Justice.)
5.
Prohibit BOP from meeting additional bed space needs by incarcerating
federal prison inmates in private prisons.
In recent years, the federal government and some state and local governments have
experimented with prison privatization as a way to solve the overcrowding of our
nation’s prisons – a crisis precipitated by increased incarceration rates and politicians’
reluctance to provide more prison funding. But results of these experiments have
demonstrated little evidence that prison privatization is a cost-effective or high-quality
alternative to government-run prisons.
Private Prisons Are Not More Cost Effective
Proponents of prison privatization claim that private contractors can operate prisons
less expensively than federal and state correctional agencies. Promises of 20 percent
savings are commonly offered. However, existing research fails to make a conclusive
case that private prisons are substantially more cost effective than public prisons.
For example, in 1996, the U.S. General Accounting Office reviewed five studies of
prison privatization deemed to have the strongest designs and methods among those
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published between 1991 and mid-1996. The GAO concluded that “because these
studies reported little cost differences and/or mixed results in comparing private and
public facilities, we could not conclude whether privatization saved money.” (Private
and Public Prisons: Studies Comparing Operational Costs and/or Quality of Service,
GGD-96-158 August 16, 1996.)
Similarly, in 1998, the U.S. Department of Justice entered into a cooperative agreement
with Abt Associates, Inc. to conduct a comparative analysis of the cost effectiveness of
private and public sector operations of prisons. The report, which was released in July
1998, concluded that while proponents argue that evidence exists of substantial savings
as a result of privatization, “our analysis of the existing data does not support such an
optimistic view.” Instead, “our conclusion regarding costs and savings is
that…..available data do not provide strong evidence of any general pattern. Drawing
conclusions about the inherent [cost-effective] superiority of [private prisons] is
premature.” (Private Prisons in the United States: An Assessment of Current Practice,
Abt Associates, Inc., July 16, 1998.)
Finally, a 2001 study commissioned by the U.S. Department of Justice concluded that
“rather than the projected 20 percent savings, the average saving from privatization was
only about one percent, and most of that was achieved through lower labor costs.”
(Emerging Issues on Privatized Prisons, by James Austin, Ph.D. and Garry Coventry,
Ph.D., February 2001.)
Private Prisons Do Not Provide Higher Quality, Safer Services
Proponents of prison privatization contend that private market pressures will necessarily
produce higher quality, safer correctional services. They argue that private prison
managers will develop and implement innovative correctional practices to enhance
performance. However, emerging evidence suggests these managers are responding
to market pressures not by innovating, but by slashing operating costs. In addition to
cutting various prisoner programs, they are lowering employee wages, reducing
employee benefits, and routinely operating with low, risky staff-to-prisoner ratios.
The impact of such reductions on the quality of prison operations has been obvious.
Inferior wages and benefits contribute to a “degraded” workforce, with higher levels of
turnover producing a less experienced, less trained prison staff. The existence of such
under qualified employees, when coupled with insufficient staffing levels, adversely
impacts correctional service quality and prison safety.
Numerous newspaper accounts have documented alleged abuses, escapes and riots at
prisons run by the Correctional Corporation of America (CCA), the nation’s largest
private prison company. In the last several years, a significant number of public safety
lapses involving CCA have been reported by the media. The record of Wackenhut
Corporation (now The Geo Group), the nation’s second largest private prison company,
is no better, with numerous lapses reported since 1999.
And these private prison problems are not isolated events, confined to a handful of
“under performing” prisons. Available evidence suggests the problems are structural
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and widespread. For example, an industry-wide survey conducted in 1997 by James
Austin, a professor at George Washington University, found 49 percent more inmate-onstaff assaults and 65 percent more inmate-on-inmate assaults in medium- and
minimum-security private prisons than in medium- and minimum-security government
prisons. (referenced in “Bailing Out Private Jails,” by Judith Greene, in The American
Prospect, September 10, 2001.)
Lacking data, BOP is not able to evaluate whether confining inmates in private
prisons is more cost-effective than federal government prisons.
Despite the academic studies’ negative results, BOP has continued to expand its efforts
to meet additional bed space needs by incarcerating federal prison inmates in private
prisons. Over a 10-year period, the costs to confine federal BOP inmates in non-BOP
facilities nearly tripled from about $250 million in FY 1996 to about $700 million in FY
2006. To determine the cost-effectiveness of this expanded use of private prisons,
Congress directed the U.S. Government Accountability Office (GAO) in the conference
report accompanying the FY 2006 Science, State, Justice and Commerce
Appropriations Act (P.L. 109-108) to compare the costs of confining federal prison
inmates in the low and minimum security facilities of BOP and private contractors.
However, GAO determined in its October 2007 report that a methodologically sound
cost comparison analysis of BOP and private low and medium security facilities was not
feasible because BOP does not gather data from private facilities that are comparable
to the data collected on BOP facilities. As a result, the GAO concluded that:
“[W]ithout comparable data, BOP is not able to evaluate and justify whether
confining inmates in private facilities is more cost-effective than other
confinement alternatives such as building new BOP facilities.” (Cost of Prisons:
Bureau of Prisons Needs Better Data to Assess Alternatives for Acquiring Low
and Minimum Security Facilities, GAO-08-6, October 2007)
BOP officials told GAO that there are two reasons why they do not require such data
from private contractors. First, federal regulations do not require these data as a means
of selecting among competing contractors. Second, BOP believes collecting such data
could increase private contract costs. However, BOP officials did not provide evidentiary
support to substantiate this concern.
BOP Director Harley Lappin gave two somewhat different reasons in disagreeing with
GAO’s recommendation that the Attorney General direct the BOP Director to develop a
cost-effective way to collect comparable data across BOP and private low and minimum
security facilities:
(1)
“The Bureau does not own or operate facilities to house solely criminal aliens
and will not be receiving funding [from Congress] to construct such low
security facilities. Accordingly, there is no value in developing data collection
methods in an attempt to determine the costs of housing this particular group
of inmates in a Bureau facility.”
(2)
“The Bureau has been able to determine what it actually costs to contract out
this particular population to private contractors via open competition. [And so]
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we do not see the value of requiring existing private contractors to provide
specific comparable data to aid in a cost comparison. This requirement would
have the potential to increase current contract costs at a time when the
Bureau is facing serious budget constraints.”
In conclusion, AFGE strongly urges the Obama administration and the 112th Congress
to prohibit BOP from meeting additional bed space needs by incarcerating federal
prison inmates in private prisons. Prison privatization is not the panacea that its
proponents would have us believe. Private prisons are not more cost effective than
public prisons, nor do they provide higher quality, safer correctional services. Finally,
without comparable data, BOP is not able to evaluate or justify whether confining
inmates in private facilities is more cost-effective than building new BOP facilities.
6.
Oppose any effort to statutorily redefine the term “law enforcement officer”
for pay and retirement purposes to exclude federal prison staff.
Under current law, the definition of “law enforcement officer” for pay and retirement
purposes includes federal prison support staff, in addition to those individuals who fill
federal correctional officer positions. However, in October 2005, the Republican staff of
the House and Senate federal workforce subcommittees released a 25-page “Concept
Paper for a Federal Law Enforcement Personnel System” that proposed to redefine “law
enforcement officer” for pay and retirement purposes to exclude federal prison support
staff.
AFGE strongly urges the Obama administration and the 112th Congress to oppose any
legislative effort to institute such a redefinition. The reason federal prison support staff
receive law enforcement officer pay and retirement benefits is because their jobs
include performing law enforcement security functions in federal prisons. These men
and women, on a daily basis, help supervise and control prison inmates at all security
levels inside the walls and fences of federal prisons. They are called upon, on a daily
basis, to provide searches of inmates, to search housing areas of federal prisons for
contraband, and to escort inmates to local hospitals or other outside facilities.
In addition, federal prison support staff – like federal correctional officers – are required
to successfully undergo training to perform these law enforcement security operations in
federal prisons. These men and women are required to go to law enforcement training
in Glynco, GA, and are required to pass firearms training every year.
Why do the jobs of federal prison support staff include performing law enforcement
security operations at federal prisons? Unlike state or county correctional facilities,
federal prisons do not have sufficiently large numbers of correctional officers to deal
with security-related issues. Because of this shortage of correctional officers, the
federal BOP must train and use prison support staff to help maintain safety and security
at federal prisons.
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7.
Exempt federal law enforcement officers, including BOP correctional
officers and staff, who separate from government service after age 50 from the
present law’s 10% additional tax for early distributions from the Thrift Savings
Plan (the third component of the Federal Employees Retirement System or FERS).
Under present law, a federal employee who receives a distribution from a qualified
retirement plan such as the Thrift Savings Plan (TSP) prior to age 59½ is subject to a
10% early withdrawal tax on that distribution, unless an exception to the tax applies.
Among other exceptions, the early withdrawal tax does not apply to TSP distributions
made to a federal employee who separates from government service after age 55.
Present law also provides that BOP correctional officers and staff, as well as other
federal law enforcement officers, who complete 20 years of service in a “hazardous
duty” law enforcement position are eligible to retire at age 50. This provision is
intended to help the federal government recruit and retain a young, physically strong
work force to work in BOP correctional institutions.
As a result, BOP correctional officers and staff who retire at 50 years of age/20 years of
service cannot – under present law – withdraw their TSP funds without incurring the
10% early withdrawal tax penalty. These retirees must wait until age 55 to withdraw
their TSP monies if they want to avoid incurring this penalty.
This is grossly unfair to the BOP correctional officers and staff who keep the most
dangerous felons behind bars, as well as to the other federal law enforcement officers
who patrol our nation’s borders and secure our federal buildings’ safety.
Until a few years ago, police and firefighters who worked for State and local
governments experienced a similar problem. Those who retired after age 50 but before
age 55 were unable to withdraw money from their defined benefit plans without incurring
the 10% additional tax penalty. However, section 828 of the Pension Protection Act of
2006 (P.L. 109-280) resolved the problem for these State and local public safety
employees. This section amended section 72(t) of the Internal Revenue Code of 1986
(which exempts certain individuals from the 10% early withdrawal penalty) by adding the
following new paragraph:
“(10) Distributions to qualified public safety employees in governmental plans.
(A) In general. - In the case of a distribution to a qualified public safety
employee from a governmental plan (within the meaning of section 414 (d))
which is a defined benefit plan, paragraph (2)(A)(v) shall be applied by
substituting “age 50” for “age 55”.
(B) Qualified public safety employee. - For purposes of this paragraph, the term
“qualified public safety employee” means any employee of a State or political
subdivision of a State who provides police protection, firefighting services, or
emergency medical services for any area within the jurisdiction of such State or
political subdivision.”
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AFGE strongly urges the Obama administration and the 112th Congress to support
legislation that would modify the section 72(t)(10) language to benefit those federal law
enforcement officers, including federal correctional officers and staff, who want to retire
at age 50 and withdraw their TSP monies without incurring the 10% additional tax
penalty. This legislation would:



Strike the language “which is a defined benefit plan” from subparagraph (A).
Thus, federal law enforcement officers who participate in a defined
contribution plan like the TSP would also be granted relief from the 10% early
withdrawal penalty.
Amend subparagraph (B) to include federal law enforcement officers.
Subparagraph (B) as now written only applies to state and local police,
firefighters, and EMS personnel.
Amend subparagraph (B) to include correctional officers and staff who work at
BOP prison facilities. Subparagraph (B) as now written only applies to police,
firefighters and EMS personnel.
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EPA MUST PROPERLY ALLOCATE WORKFORCE
EPA Must Justify More FTEs40 Through Workload/Workforce Analyses
EXECUTIVE SUMMARY
EPA Funding
Clean air, land and water are no less a national priority than are national defense, an
adequate system of interstate highways, and safe and efficient aviation and rail
systems. Alarmingly, the American Society of Civil Engineers (“ASCE”) gave America's
infrastructure a failing grade of D in its 2009 report. ASCE also identified more than
$2.2 trillion in outstanding infrastructure needs. Yet, infrastructure spending in real
dollars is about the same now as it was in 1968 when the economy was a third smaller.
EPA estimates that the nation must invest $390 billion over the next 20 years to replace
existing systems and build new ones to meet increasing demands. State and local
governments account for about 75% of infrastructure spending, and most are reeling
from budgetary shortfalls.41
EPA Staffing Needs
Since EPA’s formation, a comprehensive study has not been completed to analyze the
Agency’s mission and the related number and location of employees.42, 43 A complete
and thorough workload analysis, followed by a workforce analysis would provide the
necessary information to properly determine FTE levels for the Agency and link
them to the budget.44,45 In its most recent report, the U.S. Government Accountability
Office (“GAO”) reported on the continuing failure of EPA to implement workload and
workforce analysis planning46. In addition to urging continued funding of EPA’s mission,
40
An FTE represents 2,080 work hours, the equivalent of one person working full time for 1 year, and includes
annual and sick leave, as well as Federal Holidays.
41
June 5, 2006, Brownfields Report by U.S. Conference of Mayors;
http://www.usmayors.org/74thAnnualMeeting/brownfields_060506.pdf
42
EPA’s Key Management Challenges for Fiscal Year 2008, U.S. EPA Office of Inspector General Report to Stephen
L. Johnson, EPA Administrator, July 2, 2008, Page 4
43
EPA’s Key Management Challenges for Fiscal Year 2009, U.S. EPA Office of Inspector General Report to Lisa P.
Jackson, EPA Administrator, April 28, 2009, Page 4
EPA’s Key Management Challenges 2005, U.S. EPA Office of Inspector General Report to Stephen L. Johnson,
Acting Administrator, April 25, 2005, Page 15
45
Office of Acquisition Management Can Strengthen Its Organizational Systems, U.S. EPA Office of Inspector
General Report No. 2005-P-00006, February 17, 2005, Page 5
44
46
Workforce Planning Report, Interior, EPA, and the Forest Service Should Strengthen Linkages to Their Strategic
Plans and Improve Evaluation, U.S. GAO Report (GAO-10-413), March 2010
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AFGE Council 238 also urges Congress to require EPA to conduct a complete and
thorough workload analysis, followed by a workforce analysis.47 This would best be
accomplished in the context of the Agency’s five (5) year strategic planning documents,
which would provide a more progressive approach to both workload analysis, as well as
an analysis of the kind of workforce needed for the future. Ultimately, if properly done,
the five-year strategic plan would then also function as a “blueprint” for the requisite
knowledge, skills and abilities (“KSAs”) required of EPA staff in order to accomplish its
current and future mission of protecting human health and the environment. This
information would then help focus the Agency on any staff re-training issues, as well as
what KSAs to look for when hiring new staff. A recent report from the U.S. EPA Office
of Inspector General (“OIG”) confirmed what GAO and OIG have been reporting on for
years now. That is, that “EPA’s policies and procedures do not include a process for
determining employment levels based on workload as prescribed by the Office of
Management and Budget… EPA does not determine the number of positions needed
per mission-critical occupation (MCO) using workforce analysis as required by the
Office of Personnel Management (OPM)... because EPA has not developed a workload
assessment methodology and has not developed policies and procedures that require
identifying and reporting on the number of positions needed per MCO. As a result,
EPA cannot demonstrate that it has the right number of resources to accomplish
its mission. …and, consequently, offices encountered delays or did not meet mission
requirements. … there is no assurance that EPA’s workforce levels are sufficient
to meet the workload of the Agency.”48
Brownfields
The U.S. Conference of Mayors has been working on the issue of Brownfields since
1993. Cities were asked to estimate the number and acreage of brownfields sites both
in 1993 and 2010, subject to each city’s criteria and best available data. In 1993, 67
cities estimated that they had a total of 11,824 brownfield sites consuming 15,228 acres
of land; in 2010, 75 cities estimated that they had a total of 29,624 brownfields sites
consuming 45,437 acres of land.49 The vast majority of cities (84%) said that they have
been successful in redeveloping brownfield sites over the past 17 years. Out of the
remaining 16% who said they were unable to redevelop any brownfields, only half of
those respondents (8%) actually said they had brownfield properties in their city. Out of
the successful cities, 65 were able, since 1993, to redevelop 1,010 sites which
47
OIG Report to Stephen L. Johnson, Acting EPA Administrator, EPA’s Key Management Challenges 2005, April 25,
2005, page 15
48
U.S. EPA Office of Inspector General Audit Report, EPA Needs to Strengthen Internal Controls for Determining
Workforce Levels, Report No. 11-P-0031, December 20, 2010
49
Recycling America’s Land, A National Report on Brownfields Redevelopment (1993-2010), The United States
Conference of Mayors, November 2010, Volume IX
103
encompassed approximately 7,210 acres with 70 cities reporting that 906 sites are
currently being redeveloped, comprising 4,683 acres.50
Climate Change
The U.S. Conference of Mayors has also stated that “…scientific evidence and
consensus continues to strengthen the idea that climate disruption is an urgent threat to
the environmental and economic health of our communities. … more action is needed
at the local, state, and federal levels to meet the challenge. There are now 1,044
signatories to – mayors in 50 states, the District of Columbia and Puerto Rico – elected
officials who represented approximately 86 million people who have signed on to the
U.S. Conference of Mayors Climate Protection Agreement.51
Recommendations
AFGE Council 238 urges Congress to review all of EPA’s programmatic needs,
planning and current funding levels in light of inflation and the growth in statutory duties
and responsibilities, the need for additional FTEs, as well as growing state and
municipal needs. Congress should require EPA to add workload and workforce
modeling to support its long-term goals.
DISCUSSION
EPA Funding Levels
The 2002 EPA Gap Analysis estimated that the United States must spend between
$331 billion and $450 billion by 2019 to upgrade and maintain the nation's existing
wastewater infrastructure systems and to build new ones. In January 2008, EPA
estimated in the 2004 Clean Watersheds Needs Survey that the documented need for
new Clean Water Act infrastructure is $202.5 billion nationwide in capital investments
over the next 20 years to bring existing systems into compliance with Federal clean
water regulations.
In order to implement federally created air programs, states need $1.2 billion, of which
the federal government should provide 60 percent, or roughly $720 million. To date,
EPA has only provided about $220 million per year, creating what is roughly a $500
million shortfall that hinders states’ ability to effectively administer their air programs.
The case for increased Federal investment is compelling. If the nation fails to meet the
investment needs of the next 20 years, it risks reversing the public health,
environmental, and economic gains of the past three decades. This shortfall in funding,
50
51
Ibid.
http://usmayors.org/climateprotection/agreement.htm
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coupled with the growth in statutory duties and responsibilities, handicaps EPA from
successfully achieving its mission.
Current State






The physical condition of many of our nation's 16,000 wastewater treatment systems
is poor, due to a lack of investment in plant equipment and capital improvements
over the years. Many systems have reached the end of their useful design lives.
Older systems are plagued by chronic overflows during major rain storms and heavy
snowmelt and, intentionally or not, are bringing about the discharge of billions of
gallons of raw sewage into U.S. surface waters each year.
States are hard-pressed to fund their State environmental Agencies. Without
increased funding from EPA, human health and the environment will not be
protected.
Needs are large and unprecedented; in many locations, local and State sources
cannot be expected to meet this challenge alone and, because waters are shared
across local and state boundaries. The benefits of Federal help will accrue to the
entire nation.
The nation’s aging infrastructure will eventually constrain economic growth.
A key impact of the constant budget shortfalls of the past has been a concurrent
reduction in FTEs available to do the work of the Agency, when in fact, FTEs should
have been increasing.
EPA Staffing Needs
EPA continues to “invest” and “disinvest” rather than properly allocating its workforce
and ensuring that its staff has the appropriate knowledge, skills and abilities by
complying with GAO’s consistent recommendations to update and utilize both workload
and workforce analyses. EPA has yet to determine the number of employees it needs
to accomplish its mission objectives and how to best allocate its employees among
EPA’s strategic goals and geographic locations. The Agency’s efforts to account for the
time spent to carry out its various tasks have been hampered by inaccuracies in existing
data.52 Compounding the problem is the fact that there is no national suite of
performance measures for EPA, and its state, local and tribal partners to follow. In
addition, the States’ environmental work is complicated by different levels of legislative
and rule-making processes, as well as different budgeting periods. EPA should be
viewed as a public service agency that protects human health and the environment, and
its success can only be measured by improvements in both human health and the
environment.
52
GAO Testimony Before the Subcommittee on VA, HUD, and Independent Agencies, Committee on
Appropriations, U.S. Senate HUMAN CAPITAL Observations on EPA’s Efforts to Implement a Workforce Planning
Strategy (GAO/T-RCED-00-129; March 23, 2000); Page 8
105
Although the Agency’s work cannot be evaluated in the same manner as one would
evaluate a business, the only way for EPA to accomplish its mission is to have sufficient
budget resources, and ensure that it has the right people working on the right things, at
the right time, with the right KSAs. Therefore, AFGE Council 238 concurs that the only
way for the Agency to properly allocate its workforce and ensure that its staff has the
appropriate KSAs, is for the Agency to comply with GAO’s consistent recommendations
to update and utilize workload and workforce analyses. Based uopn the figures below,
it is hard to believe that EPA can successfully carry out its mission to protect human
health and the environment, along with all of the increased statutory responsibilities,
given the FTEs currently on-board.
Fiscal Year
EPA
Budget
(Billions
of
Dollars)
Staffing
Level
(FTEs)
Increase
(Decrease) in
FTEs from
Previous
Number
of FTEs
Per
Billions
of
Dollars
in
Budget
FY 1970
$1.0
4,084
-----------------------
4,084
FY 1980
$4.7
13,078
8,994
2,783
FY 1990
$5.5
16,318
3,240
2,967
FY 2000
$7.6
18,100
1,782
2,382
FY 2008
$7.5
17,324
(776)
2,310
FY 2009
$7.6
17,252
(72)
2,270
FY 2010
$10.3
17,417
165
1,691
FY 2011
$10.0*
17,571*
154*
1,757*
(projected)*
106
Impacts of Improper Allocation of Workforce
Because EPA does not have a system in place to assess its human capital
requirements which include skills and training needs for current staff, and to allocate
resources accordingly, the allocations are based primarily on the number of FTEs that
were allocated in previous years, with increases or decreases made incrementally to
reflect the agency’s “investments” and “disinvestments.”53 Without reliable and valid
workforce information, EPA cannot assure the Administration, Congress or the general
public that it is hiring the right number and type of people or allocating existing FTE
resources to effectively meet current or future mission needs.
The Agency has yet to establish a comprehensive program to ensure that its staff has
the requisite KSAs required to carry out its current mission, and its anticipated future
missions. In reality, without reliable and valid workload and workforce information, EPA
cannot properly assess whether or not its staff has the right balance of KSAs to carry
out the current and future mission of the Agency. AFGE Council 238 urges the new
Administration to ensure that the Agency evaluates its current workforce and ensures
that its staff has the right set of KSAs to successfully do their jobs.
EPA, like other Federal agencies and departments, is also facing an inevitable wave of
retirements that would greatly impact its mission. For example, EPA has reported that
almost 60 percent of its Senior Executive Service will be eligible to retire by 2008 and
projected a loss of at least 20 percent of its supervisors in 10 of 18 priority
occupations.54 The problem is even more acute for the engineers, scientists and staff
that are on the front lines of accomplishing the Agency’s mission. It is imperative that
EPA fully prepare for the resulting loss of leadership, institutional knowledge, and
scientific expertise by hiring the next generation of EPA employees now. However, the
lack of Agency funding only exacerbates the problem of retaining experienced staff, as
well as transferring institutional knowledge to a new generation of EPA employees. To
be strategically effective, EPA must determine the number of employees it needs to
accomplish its mission objectives and how to best allocate its employees (FTEs) among
EPA’s strategic goals and geographic locations now and in the immediate future, and
have the resources to hire the new generation of EPA employees so that “institutional”
knowledge can be transferred.
53
Ibid.; Page 7
GAO Report: Human Capital: Selected Agencies Have Opportunities to Enhance Existing Succession Planning and
Management Efforts, GAO-05-585; June 2005, Page 3
54
107
Viewed from another perspective, if EPA should need to downsize, it would not have the
information needed to ensure that staff reductions could be absorbed with minimal
impacts on mission objectives. This was born out when Congress denied EPA’s
proposal to downsize its enforcement staff in order to shift resources to State
enforcement grants because EPA had no workforce information to demonstrate that
staff reductions would not jeopardize environmental enforcement.55 When EPA
proposed a consolidation/reorganization in August 2008 as a result of EPA’s Office of
Research and Development Administrative Efficiencies Project, the Agency again
appeared to have no basis to justify the proposed decrease of 97 FTEs, since it does
not have current, valid workload and workforce data.
Another illustration of the Agency’s lack of workload and workforce methodology
occurred in FY 2006 in EPA’s Office of Enforcement and Compliance Assurance
(“OECA”), where EPA Region 4 (Atlanta) requested additional FTEs on the basis that its
Region was growing in population and industrial base. EPA Region 4 was denied any
increase in FTEs due to the lack of any credible numbers to support the increase. In
the same fashion, there have been no consequent decreases in FTEs in other Regions
which have experienced a decrease in population and industrial base.
All of the reports submitted by GAO and OIG on the Agency’s failure to adequately
document its workload and properly allocate its workforce is troubling, and cause the
Union great concern.
Workload and Workforce Modeling Recommendation
In a previously issued report56, OIG emphasized the need for EPA’s Office of
Acquisition Management (“OAM”) to identify skill and FTE gaps within its workforce.
The OIG recommended that OAM complete its workload analysis and then perform a
workforce analysis. These analyses would allow OAM to identify needed skills so that
any skill gaps or surpluses could be addressed. OAM indicated that it had previously
attempted to conduct a workload analysis partly to compare FTE usage against
workload processes. However, OAM was unable to complete the analysis because of
the poor quality of data in their information systems and the application of subjective
weighting to the data.57 This failure on the part of the Agency to properly conduct
workload and workforce analyses to identify KSA and FTE gaps within EPA’s workforce
55
GAO Report: Major Management Challenges and Program Risks Environmental Protection Agency (GAO-03-112;
January 2003, Page 21
56
OIG Report No. 2005-P-00006, Office of Acquisition Management Can Strengthen Its Organizational Systems,
February 17, 2005, Page 5
57
OIG Report to Stephen L. Johnson, Acting EPA Administrator, EPA’s Key Management Challenges 2005, April 25,
2005, Page 15
108
is inhibiting AFGE Council 238 members’ ability to accomplish the Agency’s mission to
protect human health and the environment.
As stated in Attachment 2 Suggested Language Additions in Key Areas of the OIG
Report EPA Can Better Manage Superfund Resources, “The workload model is one
factor underlying FTE allocations. As its mission has evolved and grown through
legislative or administrative mandates, EPA has adapted, as necessary, by
reorganizing, reevaluating its needs, and requesting sufficient resources to meet its new
and changing responsibilities. The workload model in existence in 1989, which was
used to assign FTEs among the Regions for baseline activities that are still drivers of
the Superfund program today, is not used to respond to these new priorities. Because
of the disruptive effect of shifting personnel on an annual basis to address marginal
programmatic changes, EPA discontinued its effort to collect, evaluate, and run model
outputs on an annual basis, and instead has dealt with annual marginal changes to FTE
ceilings according to program priorities.”58 [Emphasis added]
In its September 26, 2008, Letter Report to Congress59, GAO responded to a mandate
in House Report No. 110-187 that directed GAO to review EPA’s budget execution,
specifically to identify the factors that influence EPA’s operating plan allocations to the
Regional Offices for a selected national program and to compare and contrast these
operating plan allocations with EPA’s reported obligations in the Regional Offices. GAO
reviewed (1) EPA’s fiscal year 2007 operating plan allocations of new budget authority
to the Regional Offices for OECA program/projects and (2) differences, if any, between
those amounts and the amounts reported as obligated in the Regional Offices for these
program/projects. In responding to these objectives, GAO also reviewed EPA’s OECA
workforce planning system to determine whether EPA has reliable enforcement
workload information that can support accurate, data-driven resource allocations. GAO
reported that EPA’s approach to allocating resources in its operating plan to its Regional
Offices had not substantially changed since it reported on it in 2001 and 2005. 60
GAO had reported in 2001 that OECA deployed its enforcement and compliance
assurance workforce largely on the basis of workload models that were developed and
58
OIG Report - EPA Can Better Manage Superfund Resources, Report No. 2006-P-00013; February 28, 2006,
Attachment 2 - Page 26
59
GAO Letter Report to Congress: EPA’s Execution of Its Fiscal Year 2007 New Budget Authority for the
Enforcement and Compliance Assurance Program in the Regional Offices (GAO-08-1109R EPA Budget Execution;
September 26, 2008)
60
Ibid., Page 6
109
last updated in the 1980s and did not consider current workload information such as the
increased role states assumed over the years in environmental enforcement.61
In 2005 GAO reported that EPA’s process for allocating resources involved making
annual incremental adjustments and relied primarily on historical precedent. EPA did
not have a system in place to conduct a bottom-up review of the nature or distribution of
its current workload, which has changed over time as EPA has taken on new
responsibilities under the Clean Water Act and other laws and the states gradually
assumed a greater role in the day-to-day implementation of key aspects of this
workload. GAO specifically recommended in 2005 that EPA focus its efforts on a
ground level assessment and (1) identify key workload indicators that drive resource
needs, (2) ensure that relevant data are complete and reliable, and (3) use the results to
inform the agency’s resource allocations.62
In both reports, GAO noted that one obstacle to developing a more systematic, datadriven approach to resource allocations was that EPA lacks complete and reliable
workforce planning information, such as how much time staff work on various types of
enforcement activities.
Where there are serious FTE issues or staff training needs, the Agency needs to
allocate resources accordingly, identifying options for addressing those problems.
Since the Agency is now in the process of strategic planning63, the workload and
workforce modeling components should be added to its five (5) year plan in order to
better estimate the anticipated FTE levels, as well as KSAs needed to adequately
protect human health and the environment.
However, three important caveats to these recommendations to add workload and
workforce modeling to the strategic planning effort are that: (1) It is done in partnership
with AFGE Council 238; (2) Sufficient resources (FTEs and budget) are allocated for the
development and implementation of the workload and workforce modeling effort; and (3)
There be Congressional oversight of this effort by GAO.
61
GAO Report HUMAN CAPITAL - Implementing an Effective Workforce Strategy Would Help EPA to Achieve Its
Strategic Goals (GAO-01-812; July 2001)
62
GAO Report to Congressional Requesters: CLEAN WATER ACT - Improved Resource Planning Would Help EPA
Better Respond to Changing Needs and Fiscal Constraints (GAO-05-721; July 2005)
63
2009-2014 EPA Strategic Plan; http://www.epa.gov/ocfo/plan/plan.htm
110
Recommendations

AFGE Council 238 supports the creation of a Federal clean water infrastructure trust
fund to provide a stable, dedicated source of revenue to the states and
municipalities to assist in the repair and improvement of America's sewage treatment
systems.

Continued funding of the Brownfields program is essential to assisting communities
across the country and is in a very real sense a program that creates jobs.

AFGE Council 238 urges Congress to review all of EPA’s programmatic needs,
planning and current funding levels in light of inflation and the growth in statutory
duties and responsibilities, the need for additional FTEs, as well as growing State
needs. In addition, AFGE Council 238 urges Congress to require EPA to add
workload and workforce modeling, as well as a concurrent effort to assess its staffs’
training needs, in order to support an enhanced training program, its long-term
human resource planning efforts, and to help direct future hiring needs.
111
Environmental Protection
Republicans, Democrats and Their Constituents Agree
EXECUTIVE SUMMARY
This issue paper focuses on bipartisan support on the importance of effective
environmental protection to the American public. Clean air, clean water, safe levels of
pesticides are a common desire of all patriotic Americans. Effective environmental
protection in the United States has been and continues to be a bipartisan requirement of
the American People. This paper attempts to elaborate on the bipartisan support for a
clean America, as well as comments from some of America’s greatest business and
Political Leaders.
Discussion
More Than 60,000 Firms In U.S. Business Groups Urge Congress
To Support EPA (December 16, 2010)64
The EPA and the Clean Air Act got a huge boost from large and small U.S. companies,
when over 60,000 firms represented by 14 business organizations told Congress to
keep the Environmental Protection Agency (EPA) and Clean Air Act strong. At the same
time, the groups expressed concerned that the EPA’s half-year delay of pending ozone
(smog) rules will be costly to U.S. companies. The delay could result in higher health
costs due to increased employee sick-day absenteeism and related medical costs borne
entirely or partially by small and large U.S. companies.
The groups’ joint letter (http://www.abce.us/) reads in part as follows: “… (S)mall
business owners support some of the key strategies needed to reduce pollution and
transition to a clean energy economy. A recent national poll of small business owners
conducted by Small Business Majority … found that 61 percent of respondents agree
that moving the country to clean energy is a way to restart the economy and make their
businesses more competitive in the global economy, and that 50 percent support
comprehensive clean energy and climate policy … Larger businesses also support
EPA’s authority under the Clean Air Act and understand that it has spurred innovation
and economic value for the U.S.”
64
http://www.americanbusinessforcleanenergy.org/ckfinder/userfiles/files/CAA_Support_Letter.pdf
112
The follow 14 leading U.S. business groups joined together to support the Clean Air Act:
• Small Business Majority;
• Main Street Alliance;
• American Businesses for Clean Energy;
• Businesses for Innovative Climate and Energy Policy (BICEP);
• American Wind Energy Association;
• American Sustainable Business Council;
• Manhattan Chamber of Commerce;
• South Carolina Small Business Chamber;
• Women’s Business Development Center;
• Vermont Businesses for Social Responsibility;
• Oregon Small Business for Responsible Leadership;
• The Center for Small Business and the Environment;
• New Voice of Business; and
• Environmental Entrepreneurs (E2).
Survey Results – Americans and Attitudes About the EPA65
September 14, 2010 - Graham Hueber, Infogroup/Opinion Research Corporation (ORC)
A new national telephone survey by Infogroup/ORC of 1,007 Americans conducted from
September 10-13, 2010 shows the following:
 More than four out of five Americans (82 percent) support the work of the U.S.
Environmental Protection Agency, with 45 percent supporting it strongly compared to
only 9 percent who strongly oppose it.
 Support for the EPA is consistent across regions: Northeast (79 percent); Midwest
(82 percent); South (81 percent) and West (86 percent).
 Support for the EPA was strong across political party lines: Republicans (71
percent); Independents (89 percent); and Democrats (93 percent).66
 About three out of four Americans (73 percent) support “protecting the U.S.
Environmental Protection Agency’s authority” to “take steps that will reduce
greenhouse gas emissions from electric utilities and other major industrial polluters.”
Support is fairly evenly divided between “strongly” (38 percent) and “somewhat” (34
percent). By contrast, only about one in four Americans (24 percent) oppose the
EPA’s authority to control carbon dioxide pollution, with just 15 percent in the
“strongly oppose category.
65
http://docs.nrdc.org/globalWarming/files/glo_10091501a.pdf
“Republican” includes independents leaning Republican, “Democrat” includes independents leaning Democrat
and “Independent” refers to those who no inclination towards one of the two major parties.
66
113
The Great "Environment Versus Economy" Myth
“We can’t afford any more environmental protection, because it will hurt the economy.”
Renowned economist Dr. John R. E. Bliese, in a published article posted at the
“Republicans for Environmental Protection” website says that: “How many times have
you heard that line? Probably every time any new standards were proposed to clean up
our air or water and protect our health. And every time we try to preserve some rare
plant or animal we have pushed to the brink of extinction, it’s “owls (or whatever) versus
jobs.”
These arguments are the most common ones we face in trying to protect the earth.
Politicians spout them freely, and so do business groups and radio talk show
entertainers. There is only one problem with these assertions: They are simply not true!
There have been dozens of well-designed studies by economists who have tested these
claims, and the results are clear: environmental protection normally has no negative
impact on the economy overall, and sometimes it has a positive effect.”67
Lamar Alexander on Environment - Republican Senior Senator (TN)
Bipartisan wetland protection & pollution clean-up
“Republicans must do more though than simply react to environmental legislation-we
must take the lead and work on environmental issues in an open-minded, bipartisan
fashion. During my tenure as Governor of Tennessee I worked to control water
pollution, protect our precious wetland areas and clean up hazardous waste. Our efforts
resulted in the National Conservation Achievement Award from the National Wildlife
Federation and the Conservationist of the Year award from the Tennessee
Conservation League.”68
Quotes from Great American Leaders on the Environment
"As we peer into society's future, we - you and I, and our government - must avoid the
impulse to live only for today, plundering for, for our own ease and convenience, the
precious resources of tomorrow. We cannot mortgage the material assets of our
grandchildren without risking the loss also of their political and spiritual heritage."69
“While I’m a great believer in the free enterprise system and all that it entails, I’m an
even stronger believer in the right of our people to live in a clean, pollution-free
environment.”70
"We can no longer afford to consider air and water common property, free to be abused
by anyone without regard to the consequences. Instead, we should begin now to treat
67
Republicans for Environmental Protection , http://www.rep.org/news/Gvol3/ge3.1_myth.html
http://www.ontheissues.org/Celeb/Lamar_Alexander_Environment.htm
69
January 17, 1961, Farewell Address to the Nation, President Dwight D. Eisenhower (1890 - 1969)
70
"The Conscience of a Majority (1970), Barry Goldwater (1909 - 1998)
68
114
them as scarce resources, which we are no more free to contaminate than we are free
to throw garbage into our neighbor's yard."71
"...because there are no local or State boundaries to the problems of our environment,
the Federal Government must play an active, positive role. We can and will set
standards. We can and will exercise leadership."72
"As we work to expand our supplies of energy, we should also recognize that we must
balance those efforts with our concern to preserve our environment. In the past, as we
have sought new energy sources, we have too often damaged or despoiled our land." 73
"What is a conservative after all but one who conserves, one who is committed to
protecting and holding close the things by which we live...And we want to protect and
conserve the land on which we live -- our countryside, our rivers and mountains, our
plains and meadows and forests. This is our patrimony. This is what we leave to our
children. And our great moral responsibility is to leave it to them either as we found it or
better than we found it."74
"If we've learned any lessons during the past few decades, perhaps the most important
is that preservation of our environment is not a partisan challenge; it's common sense.
Our physical health, our social happiness, and our economic well-being will be
sustained only by all of us working in partnership as thoughtful, effective stewards of our
natural resources."75
"I'm proud of having been one of the first to recognize that states and the federal
government have a duty to protect our natural resources from the damaging effects of
pollution that can accompany industrial development."76
"For decades we have been living lives of abundance, with little regard for our natural
resources or global health. But we are now facing hard choices in our energy policy.
Future generations — my children and grandchildren, along with yours — will have to
live with the decisions we make today. And so it is time for us to make some tough and
71
Annual Message to Congress on the State of the Union, 1970, President Richard Nixon (1913 - 1994)
State of the Union Message on Natural Resources and the Environment, February 14th, 1973, President Richard
Nixon (1913 - 1994)
73
Ibid.
74
Remarks at dedication of National Geographic Society new headquarters building, June 19, 1984, President
Ronald Reagan (1911 - 2004)
75
Remarks on signing annual report of Council on Environmental Quality, July 11, 1984, President Ronald Reagan
(1911-2004)
76
Radio address to nation on environmental issues, July 14, 1984, President Ronald Reagan (1911-2004)
72
115
— hopefully — smart choices regarding our energy use and production before it is too
late."77
"Some urge we do nothing because we can't be certain how bad the (climate) problem
might become or they presume the worst effects are most likely to occur in our
grandchildren's lifetime. I'm a proud conservative, and I reject that kind of live-for-today,
‘me generation,’ attitude. It is unworthy of us and incompatible with our reputation as
visionaries and problem solvers. Americans have never feared change. We make
change work for us."78
"The evidence is sufficient that we should move towards the most effective possible
steps to reduce carbon loading of the atmosphere."79
"You can be totally committed to conservative principles — to individual liberty, a market
economy, entrepreneurship and lower taxes — and still be a Green Conservative. You
can believe that with the sound use of science and technology and the right incentives
to encourage entrepreneurs, conservatism can provide a better solution for the health of
our planet than can liberalism."80
Summary
Both Democrats and Republicans support the importance of effective environmental
protection of this great Nation’s natural resources. Clean air, clean water, safe levels of
pesticides and effective disposal of toxic substances are a common desire of all patriotic
Americans. Effective environmental protection in the United States has been and
continues to be a bipartisan requirement of the American People. We all share the
same goals and desires for clean air and water for ourselves and for our children.
77
Address to Clean Cities Congress, May 8, 2006, John McCain (1936-)
Address at Center for Strategic and International Studies, April 23, 2007, John McCain (1936-)
79
Statement in debate sponsored by John Brademas Center for the Study of Congress, April 10, 2007 Newt Gingrich
(1943 - )
78
80
Article, Human Events Online, April 23, 2007, Newt Gingrich (1943-)
116
What We’re Asking You to Do in a Bipartisan “Partnership” in Congress
 Support the budget for and work of the Federal civilian employees at the U.S. EPA.
 Encourage new job creation within all “environmental protection industries” like
clean fuels, clean cars, wind and solar energy, and more.
 Contact AFGE Council 238 at the U.S. EPA for up to date information on programs
and research at the U.S. EPA.
117
INAPPROPRIATE HIRING PRACTICE AT EPA
EXECUTIVE SUMMARY
Title 42 of the United States Code (USC) Section 209 (f) – (h) specifically granted to the
Department of Health and Human Services (HHS), special hiring authority to hire
consultants, scientists and engineers, at a much greater pay scale than allowed under
Title 5 authority.
Due to perceived problems at the Environmental Protection Agency’s (EPA) Office of
Research and Development (ORD) in recruiting, hiring and retaining scientists and
engineers (primarily due to the shortage of allocated Senior Executive Service (SES),
Senior Level (SL)81 positions generally in a scientific advisory capacity, and Scientific or
Professional positions (ST)82 slots in ORD, EPA interpreted the Title 42 authority as
extending to the work conducted by their Office of Research and Development and
obtained appropriation authority, from Fiscal Year 2006 through Fiscal Year 2011.
Discussion
In a single sentence under an administrative provision of Public Law 109-54 the
Environmental Protection Agency’s Office of Research and Development was first
granted the authority to make up to 5 appointments per year using 42 USC Section 209,
even though this statute does not cover EPA. Funding for this provision was extended
through fiscal year 2015 when the Department of the Interior, Environment, and Related
Agencies Appropriations Act of 2010 (H.R. 2996) was passed by the House. Currently,
about fifteen appointments have been made, but a total of thirty appointments are
expected to be made by the end of FY 2011.
81
Federal Employees Pay Comparability Act 1990
82
Ibid.
118
Salaries in Millions
10
Title 42 Salaries (in millions)
8
6
4
2
0
2006
2007
2008
2009
2010
2011
2012
2013
2014
2015
Fiscal Years
Assuming a salary of $195,000, the chart below shows how much EPA is expecting to
spend for Title 42 hires. With salary compensation limited to $250,000 per year and not
to exceed $275,000 in total compensation including bonuses, using the $195,000 salary
as an average is a conservative estimate. Beginning in FY 2012, the Office of
Research Development will be obligated to spend nearly $7 million dollars for a handful
of highly paid scientists.
Representatives Joe Barton (TX – 6th) and Greg Walden (OR – 2nd) have previously
questioned the Agency’s use of the Title 42 hiring authority. Asks Barton of EPA
Administrator Lisa Jackson, “We are curious how EPA can legally use statutory
authority explicitly committed to the Public Health Service and the Surgeon General,
particularly the special consultant authority in 209(f).” Representative Barton also
expressed concern about the large retention bonuses paid to Title 42 employees, the
millions in taxpayer dollars needed to pay Title 42 salaries, the extensive use of this
hiring authority within HHS, and the spread of this hiring authority to other agencies.
EPA’s efforts to access and model the HHS Title 42 hiring authority should raise alarms,
it only took HHS 10 years to make over 2000 Title 42 hires. EPA is just now beginning
the fifth year of hiring.
We are encouraged by the efforts of Representatives Barton and Walden. AFGE
Council 238 has previously expressed concerns about the Agency using Title 42
authority to circumvent civil service hiring laws. Congress passed civil service hiring
laws to ensure fair and equal treatment of all applicants for federal government
positions. Title 42 specifically exempts EPA from using fair and open competition to fill
their management positions. Title 42 also allows for a number of questionable
hiring/employment practices such as the hiring of foreign nationals, creating an
alternative pay system that has little public accountability, large bonuses, direct hiring
without competition, and pay increases not limited by Congressional or Executive pay
freezes. The sole rationale for using Title 42 Authority, as mentioned in a 2010 EPA
119
funded, National Research Council (NRC) report (released) is that the Agency lacked
SES positions for their scientific leadership positions (i.e., administrative positions) and
switched to using Title 42 hiring authority. A solution to assist ORD in hiring scientific
leaders is to use SES hiring, either by being granted more SES slots and /or by
gradually switching the SES positions from administrative slots back to scientific slots,
through retirements, transfers, etc. Additionally, ORD has used Title 42 positions to hire
internal ORD employees, as a retention tool and not for outside experts who are needed
by the Agency for immediate pressing issues, where insufficient EPA expertise exists,
thereby, bypassing the intent of this hiring authority.
Summary
Without current or reliable workforce information, EPA cannot be sure which hires are
critical to achieving the agency mission. A 2010 ORD survey of employees showed that
the greatest need was in administrative support. In light of the current budget shortfalls
at EPA and no Agency wide direction in hiring, AFGE Council 238 recommends
defunding Title 42 at EPA.
120
Social Security Administration
As the crown jewel of the New Deal and the most successful and popular program of
the federal government, Social Security is a program AFGE will fight to strengthen and
protect. From the privatizers to those who would slash benefits by raising the age of
eligibility and undermining inflation protection, Social Security has powerful enemies.
AFGE is proud to represent approximately 52,000 employees of the Social Security
Administration (SSA) who work every day to make sure that their fellow Americans
receive all of the benefits to which they are entitled in a timely and accurate manner.
AFGE members are proud of the Social Security system’s reputation for integrity,
efficiency, reliability, and consistency. AFGE will continue to work to promote honesty
and truthfulness in all public discussions over Social Security, with the goal of
strengthening the program now and in the future.
Stoking Fear of Insolvency
The latest effort to undermine public support for Social Security is coming from the
same organization that generated the deficit commission’s proposals to vastly increase
the amount charged to federal employees for their Federal Employees Retirement
System (FERS) annuity. The “Third Way” foray into the business of fear-mongering on
Social Security starts out: “…the intergenerational promise of Social Security, our
nation’s most important social insurance, is a false one.” It goes on to heighten fears
about Social Security’s solvency by saying, wrongly, “Anyone who hopes to be alive in
27 years won’t receive their promised benefits because the Trust Funds will be
completely depleted.” http://www.thirdway.org/publications/363
With misinformation like this being purveyed by impressive-sounding Washington “think
tanks” nominally associated with the Democratic Party, it is no wonder that so many
people are convinced that they will never see Social Security benefits. The campaign to
cut and/or dismantle Social Security requires substantial confusion on the part of the
public because only those who never expect to receive benefits are willing to support
cuts or privatization. According to the Social Security Administration’s own actuaries,
the truth is that Social Security is fully funded for the next 30 years, and under moderate
growth rate assumptions, would be able to pay about 78% of promised benefits
indefinitely if no changes to the system are made. This hardly qualifies as a crisis, but
the Third Way and other enemies of Social Security want the American public to think
otherwise.
The Third Way’s plan for closing Social Security’s projected long-term funding gap relies
on raising the retirement age to 70, reducing cost of living adjustments by switching to a
“chained Consumer Price Index (CPI)”, an inferior measure of inflation that excludes
price changes when a possible substitute good or service exists; raising the level of
121
income subject to payroll taxes and imposes taxes on income between $300,000 and
$500,000, but lowers benefits for high earners (certain to weaken support for the
program on the part of high earners), and charges immigrants on H2A and H2B visas a
10% payroll tax contribution.
The proposals offered by the Third Way and the President’s Deficit Commission share
the same fatal flaws: First, they attempt to exploit the public’s confusion about the
impact of the deficit on the economy. Second, they attempt to conflate the enormous
and genuine threat that unchecked health care costs have on employer-sponsored
health insurance and the Medicare and Medicaid programs with small and separate
financial problem that Social Security may have in the future.
The Importance of Social Security Relative to the Size of its Projected 75-Year
Funding Gap
The best way to understand the size of Social Security’s projected long-term funding
shortfall is to know that raising payroll taxes by 1.7 percentage points, from the current
12.4% of covered earnings to 14.1% of covered earnings would be sufficient to close
the entire projected gap over the 75-year planning horizon. Today, employers and
employees split Social Security payroll taxes evenly. Workers pay 6.2% of earnings up
to $106,800, and employers pay the other 6.2%. To make the entire projected 75-year
gap disappear, Congress could increase those respective amounts to 7.05% apiece.
http://assets.aarp.org/rgcenter/econ/i3_reform.pdf
The crash of the housing bubble eliminated most of the wealth that the baby boomers
had been to accumulate over the course of their working lives. According to a study by
the Center on Economic Policy Research, the median household net worth, including
home equity of “older baby boomers,” those born between 1946 and 1955, was just
$170,000 as of 2009. The median household net wealth of the entire baby boom is
$80,000 including home equity, which leaves this population cohort hugely reliant for
Social Security for retirement income security.
According to the Department of Labor’s statistics on employer provided pensions, in
1999, the last time complete survey data from the Current Population Survey was
compiled on this issue, the overall coverage rate was 44%. Only 40% of female
workers were covered, and 47% of male workers were covered.
http://www.dol.gov/ebsa/publications/99pensionreport.html. Of course, this was prior to
the Great Recession and the financial crisis that destroyed so much of the value of
workers’ 401 (k) savings. In the twelve years since these data were reported, pension
coverage by private employers has only decreased, leaving American workers more
dependent on Social Security, and more vulnerable to accepting cuts when they believe
that the alternative is to receive nothing.
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Progressive Options for Closing Social Security’s Modest 75-year Funding Gap
Raising the Social Security payroll tax by 0.85 percentage points for employers and
employees alike is attractive for its simplicity, but it is not the fairest way to close the
projected gap.
One of the most popular and progressive measures would be to raise the amount of
earned income subject to payroll taxes. Currently, wages and salaries above $106,800
per year are not subject to taxes. Historically, the earnings cap allowed 90% of all
wages and salaries to be taxed. In recent decades, as more income shifted away from
the middle class and the poor to the very rich, indexing this cap to inflation was
insufficient to retain that 90% threshold. Most analysts estimate that raising the cap to
cover 90% of wages and salaries would cover about 40% of the projected gap. Another
32% of the projected gap could be closed by subjecting all salary income over the
taxable maximum to a 3% tax, without any corresponding increase in benefits.
That would leave about 28% of the remaining projected gap to fight over. Bringing in
state and local workers who currently do not participate in Social Security would close
another 10% of the projected gap. Raising the payroll tax by just 0.5% could close 23%
of the gap. Lowering benefits for the very rich could also close 25% of the gap.
There is no end to progressive solutions, just like there seems to be no end to Social
Security’s enemies raising proposals like increasing the age of eligibility for full or partial
benefits, and reducing COLAs, and setting up private accounts so that workers would
be left to the uncertainties of Wall Street and interest rates.
Conclusion
There is no good reason to cut Social Security benefits now or in the future. Increasing
numbers of Americans rely upon Social Security for most or all of their retirement
income, a trend likely to continue indefinitely. Proposals based upon assumptions
about increased longevity ignore the fact that almost all of the observed increases are
experienced by the top half of the income distribution, those least likely to rely on Social
Security for the bulk of their retirement income.
Most important, no changes to Social Security should be considered or undertaken in
the midst of the mass confusion and misunderstanding that characterize the public’s
current “knowledge” about the program. Until Americans are assured that the notion
that they’ll “never” see promised Social Security benefits is dispelled, they are likely to
acquiesce to the demands of those who would exploit this confusion. AFGE will
continue to work to educate the American public about the true strength of the Social
Security system so that it can continue to fulfill its promise for generations to come.
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National Guard Technicians Bill of Rights Legislation
With more reliance being placed on the members of the National Guard and Reserve in
accomplishing the vital mission of the Department of Defense, providing equity and
fairness to National Guard Technicians is long past due. The Defense of America and
the war of global terrorism rely more now than ever before on the role that National
Guard Technicians provide. As this reliance increases, so does the awareness of the
differences that exist between the active and reserve component aspects of their
military membership and the work lives as civilian employees.
The Reserve Component as an operational force was a key transformation
consideration in the BRAC 2005 realignments and has been a significant consideration
in the wars in Afghanistan and Iraq. The frequency and duration of deployments of
National Guard units is significantly different today than when the current provisions of
law were crafted. Likewise, the ever increasing role that many National Guard units
have daily is significantly changed.
Additionally, in any drawdown of active component forces as now being considered,
reliance on the reserve component becomes more critical in sustaining the Department
of Defense’s capabilities. This is equally true in instances where states find it necessary
to deploy National Guard units for domestic, national security, and in response to
natural disasters.
There are 48,441 dual-status technicians in the United States. National Guard dualstatus technicians are a unique type of federal employee. As civilians who work for the
National Guard they are also required to maintain membership in the National Guard as
a member of the Armed Forces. National Guard Technicians are covered by both Title
5 and Title 32 (known as the Technician Act). The Technician Act requires dual-status
technicians to wear a military uniform as a condition of their employment; leave their
civilian position if they can no longer meet their military requirements; and exempts the
workers from overtime pay, seniority, and disciplinary appeal rights that other federal
workers have. Additionally, the State Adjutant, a state employee, is responsible for and
oversees these employee service members.
Representative Rob Andrews (D-NJ) (Nat Bell in Rep. Rob Andrews’ office at: 202-2256501) supports correcting these inequities which include;
Retirement - Lowering the Military retirement age to 55 for all National Guard members
to provide parity with other members of the military and the Elimination of the 1996 cutoff date in the FY 00 NDAA so National Guard Technicians serving before that time can
also benefit from earlier civilian retirement (at age 50 with 20 years of service or after 25
years of service at any age).
Dual status requirement - Allow Dual Status Technicians to leave the military and
retain their civilian position after 20 years of service and increasing the number of nondual status positions.
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Provide the same Appeal rights afforded other federal employees - by allowing
dual status technicians to appeal disciplinary decisions by the Adjutants General to the
MSPB or to arbitrate those decisions like other federal workers can.
Provide for Health Care comparable to that of the active component – by making
the Wounded Warrior program for technicians mandatory, request that a study be
conducted to examine the inclusion of technicians in the Tricare program, require the
federal government to continue to pay FEHBP premiums during Emergency State
Active Duty (ESAD) and during contingency operations.
Enlistment Bonuses, Student Loan Programs, and Overtime – allow National Guard
Technicians to receive and keep enlistment bonuses, participate in student loan
repayment programs, and to receive overtime pay for overtime worked.
Increase the amount of leave for training – double the amount of training leave time
from 120 hours to 240 hours; without a cap on the amount of time a worker can carry
over.
Deployment Bonus – provide a deployment bonus of $100 per day per Technician for
each day over 180 days while serving in an active duty capacity in an overseas
deployment.
Provide for Retention rights during a reduction in force (RIF) – give Dual Status
Technicians the same order of retention rights as other federal workers during a
reduction-in-force (RIF).
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District of Columbia Worker Issues
Introduction
In November 2010, AFGE members joined a clear majority of District of Columbia (DC)
voters in rejecting the politics and policies of exclusion that were the calling card of
former mayor Adrian Fenty. At Mayor Fenty’s direction, an enormous budget deficit was
not only concealed, but used as subterfuge for depleting the ranks of the District
government workforce by employing a strategy of routinely ignoring collective
bargaining agreements and breaking District and federal law in an effort to deny District
workers due process under the law. The election of Mayor Vince Gray was strong
evidence that the voices of the residents of DC and the civil servants who work on their
behalf matters. AFGE calls upon Mayor Gray to partner with unions in a meaningful way
to address issues crucial to the workforce and DC residents. We also urge him to reject
anti-union calls to balance the city’s budget on the backs of its workforce and dilute the
participation of public sector unions in the governing process.
DC Workers Make “One City” Work
Mayor Gray used the slogan “One City” to characterize both his campaign and his vision
of the District. DC workers are an integral part of “One City” and should be have a
meaningful voice at the table in addressing the myriad of problems left by former Mayor
Fenty, including serious violation of DC public worker protection statutes and failure to
honor collective bargaining agreements, but also in addressing issues such as reducing
the large budget deficit and the safety of DC residents. AFGE calls on Mayor Gray to
meet regularly with union representatives and resolve ongoing DC public worker issues
from the outset of his administration.
Procurement Reform
AFGE believes that as the civil servants of our nation’s capital, DC should be a model
for procurement legislation and policy at the state and local level. Despite rhetoric to the
contrary, there is no proof that private contractors are more efficient and cost-effective
than government workers. Nonetheless, this unproven myth is at the heart of many
efforts to contract out government jobs. The Gray Administration cannot privatize itself
out of the current and ongoing budget crisis facing the city. There should be no
contracting out of public sector jobs unless the contractor can perform more efficiently
and effectively and at lower costs than DC workers. The right of DC workers to bid in
good faith for the work to be contracted must be strengthened, with effective oversight
of agencies that ignore or consciously circumvent law and policies giving DC workers a
fair shake. Finally, DC workers whose jobs are subject to a reduction in force (RIF)
because of contracting out should receive full and fair first consideration for employment
with the contractor at equivalent pay and benefits.
During 2010, then DC Council Chair Gray introduced the Omnibus Procurement Reform
Amendment Act on behalf of former Mayor Fenty. Instead of strengthening oversight of
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the contracting out process and protecting the rights of incumbent workers, the bill
focused on improving procurement practices with respect to contractors while
diminishing the already weak rights of bargaining unit employees by eliminating
statutory provisions restricting privatization contracts and procedures. AFGE strongly
supported Council Member Mary Cheh’s amendments to the Procurement Act, which in
addition to retaining the section of current law protecting DC workers, also improved
efficiency, oversight, and transparency in the District’s contracting system.
AFGE strongly urges Mayor Gray to support the DC Council’s adoption of Procurement
Reform legislation that accomplishes the following:
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Require DC agencies to maintain an inventory of the funds spent on contractors
and public employees by agency and function;
Require that insourcing and outsourcing be based on cost savings and efficiency
analyses rather than ideology;
Allow DC workers and contractors the same right to protest DC contracting
actions, and provide DC workers with the same right as contractors to a debrief
when they lose a bid;
No contractor should be able to take work from DC employees by submitting a
lower bid by failing to provide equivalent health and care and retirement benefits
to that provided by the DC government;
DC should establish a definition of functions that are “inherently governmental”
and can only be performed by government employees, not contractors; and
Ensure the right of first refusal to employment by the contractor in a comparable
available position for which the employee is qualified, and DC workers should
have the right to the same wages and benefits paid while employed by the
District, including wage increases under the current collective bargaining
agreement for their bargaining unit if hired by the contractor.
Repeal the Abolishment Act
In 2006, Congress extended the Abolishment Act (I-624.08), effectively allowing the DC
government to define the procedures governing any RIF initiated by an agency head by
limiting the procedures to which an aggrieved employee is entitled and rendering those
procedures nonnegotiable. Although this was a misguided effort by Congress to help
DC government reduce costs, agencies under the Fenty administration exploited the
Abolishment Act to prevent DC workers from arbitrating any term or condition of the RIF
affecting them whether substantive or procedural. As a result, DC workers covered by a
collective bargaining agreement have been unfairly deprived of any meaningful
opportunity to assert the rights that they were intended to have under the District of
Columbia Comprehensive Merit Personnel Act.
Disability Compensation Caps
The DC Disability Compensation program services more than 2000 DC government
workers who were injured on the job in course of carrying out their duties. AFGE has
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fought hard for improvements in the program over the past several years so that
workers claims are processed in a more timely manner, physicians and attorneys’ fees
are paid for their services and workers and their families have compensation when they
are unable to work due to their injuries. Because injuries can take months, years or
even decades, until 2010 there has been no cap on the amount of time a worker would
receive disability benefits. Providing appropriate support, medical care and
compensation to injured workers will lower costs because those workers are more likely
to return to work faster than those whose recovery is hampered by a lack of income and
medical attention.
In a shortsighted move to address the current DC budget deficit, the FY 2011 Budget
Support Act undermined improvements to the Disability Compensation System by:
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Financially penalizing injured workers who appeal a decision;
Placing an arbitrary cap of 10 years for temporary disabilities;
Giving preference to a government doctor over the treating physician of an
injured worker during evaluations;
Prohibiting benefits for emotional or psychological injuries; and
Reversing the attorneys’ fee provision.
By enacting these provisions, the DC Council reverses the progress made through
years of advocacy, public hearings and a mountain of documentation of the need to
reform the Disability Compensation Program to better serve injured workers and
stewardship of taxpayer dollars. The decision to incorporate these proposals into the
budgetary process prevented a thorough public dialogue and comment period and
created a situation where serious worker concerns were drowned out by the louder
noise of larger budgetary battles and debates. AFGE calls on the DC Council to hold
hearings to weigh the impact of the changes in the Disability Compensation Program on
DC workers against the small and speculative savings provided, and repeal those
changes to the program.
The Leadership Vacuum at the Court Services and Offender Supervisory Agency
AFGE urgently calls for the Obama Administration to address the serious and ongoing
problems faced by the workforce of the Court Services and Offender Supervisory
Agency (CSOSA) due to the lack of permanent leadership at their agency. It has been
almost two and one-half years since the agency—charged with the important mission of
providing supervision of criminal offenders on probation, parole, and supervised
release—has been guided by permanent leadership. AFGE strongly endorses the
consideration of George Pruden to be CSOSA administrator.
The members of AFGE Local 727 at CSOSA are committed to performing their duties of
protecting the public while facilitating the supervision, rehabilitation, and reentry of over
16,000 offender and pretrial defendants even though the lack of leadership at CSOSA
has made their difficult jobs even harder to perform. During the period without
permanent and effective leadership, the attrition rate for staff at the agency has been
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upwards of 8 percent. This attrition rate is especially detrimental given that experience
on the job is essential to the duties of supervising criminal offenders. Important
management positions remain vacant for close to three years because there is no
permanent CSOSA administrator to appoint qualified staff to essential positions
including the position of General Counsel.
District Youth Rehabilitation Service Workers Voice Concern for Public Safety
AFGE shares the concerns of our members who work at the agencies of the District
Youth Rehabilitation Service (DYRS) who view their duties as a responsibility to protect
both young offenders and the public. Wards of the city are increasingly the victims and
perpetrators of crimes that reach beyond the District into Maryland, Virginia, and other
parts of the country. DYRS workers have long known that the combination of
inadequate staffing and high caseloads has left workers unable to supervise highly
troubled and often violent offenders. DYRS workers report that the District currently has
no certain count of the number and whereabouts of its wards because the computer
program purchased to keep track of offenders several years ago simply does not work.
DYRS has seen four different permanent or interim directors within the past year that
has resulted in no continuity in the agency. AFGE calls for DC government to own the
problems within DYRS and give DYRS workers a meaningful voice at the table in
crafting a strategy to address rising juvenile recidivism and better protect the public.
Under former director Vincent Schiraldi and former Mayor Fenty, DC pursued a model
of juvenile justice focused on community rehabilitation rather than institutions. While
DYRS workers agree that young offenders must be successfully reintegrated as safe,
productive members of their communities, workers state they are not given the
resources to adequately evaluate and diagnose youth for mental illness and substance
abuse, adequately monitor and supervise youth who are released into the community
and that their strong recommendations that certain violent offenders be held in higher
security facilities are ignored by supervisors.
Mayor Gray has called for an overhaul of the juvenile justice agency, but has not offered
specifics as to what his administration intends to do to address the problem. AFGE
believes that a very important aspect of that overhaul must be to give DYRS workers a
meaningful voice at the table.
Conclusion
During the years of the Fenty administration, DC public workers were deemed to be the
problem with the city, rather than the dedicated men and women who often struggle
against great odds to provide services to District residents. AFGE hopes that the
election of Mayor Gray will signal the beginning of the District treating its workforce with
dignity and respect, and allow DC public workers to be a part of the solution of the
District’s problems.
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Equal Employment Opportunity Commission
Slashing Civil Rights Enforcement is a Job-Killer
Summary
AFGE’s National Council of EEOC Locals, No. 216, represents employees on the front
lines of protecting civil rights in the workplace. The Equal Employment Opportunity
Commission’s (EEOC’s) investigators, attorneys, mediators, administrative judges and
other staff enforce civil rights laws, which protect against discrimination on the job,
based on race, religion, color, national origin, sex, age disability and now genetics.
In FY10, EEOC received 99,992 charges, the highest number of charges of workplace
discrimination in its history. This represents the third consecutive year of record high
filings. This trend likely will continue, due to high unemployment, the amendment of
disability laws, and the enforcement of a new statute focusing on genetic discrimination.
The good news is that in FY10, EEOC helped more workers than in FY09, as
demonstrated by an increase in people who received monetary benefits. Also, EEOC’s
backlog grew less than 1% in FY10, after eight consecutive years of steadily sharp
growth. These results are due to the hard work of EEOC’s frontline staff, which grew
slightly in FY10.
The bad news is that EEOC still ended FY10 with a backlog of 86,338 pending cases.
EEOC made no inroads in FY10 towards tackling this gargantuan surplus of
unprocessed cases. These cases represent lost opportunities to get Americans back to
work. The average processing time of an EEOC case grew to an appalling 10 months.
For FY12, AFGE Council 216 will lobby Congress to support the President’s FY11
request to increase EEOC’s budget from $367 million to $385 million. In any event,
AFGE Council 216 will urge Congress to at least maintain FY10 funding levels.
Although maintaining FY10 funding will not allow for backlog reduction, it is preferable to
the explosion of unprocessed cases that will occur if the agency were cut back to FY08
budget and staffing levels. In fact, EEOC’s FY08 budget of $329 million represented
the sixth year of virtually level funding. As a result, all customer service metrics hit rock
bottom. It would be job-killing for workers for EEOC to return to these dismal FY08
service levels in today’s economy.
Discussion
1. The Economy and Added Enforcement Authority Caused A Third Year of
Record High EEOC Charges and No Backlog Reduction.

AFGE Council 216 Will Lobby Congress To Now Pass a Budget Increase
for EEOC, Requested for FY11; But In Any Event, At Least Maintain FY10
Funding, to Prevent Backsliding at EEOC that will Affect Jobs.
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EEOC is the chief agency responsible for enforcing this country’s laws preventing
discrimination in employment. Discrimination costs Americans jobs in the private and
Federal sectors. The agency must be swift and effective in order to deter discrimination
and to make a difference to those whose cases it handles. Workplace discrimination,
such as harassment, retaliation, or failure to accommodate a disability, prevents
employees from working or getting a job in the first place.
In FY10, EEOC received just shy of 100,000 charges of discrimination, an historic high
for the agency. FY10 was the third consecutive year of record high charges.
The two biggest factors leading to the upswing in charges are: high unemployment and
EEOC’s responsibility for three new laws. The former reason is expected to continue in
the near-term and the latter is a permanent matter of EEOC’s jurisdiction. In 2009,
EEOC began enforcement of three new laws: the Genetic Information Non
Discrimination Act (GINA); the Lilly Ledbetter Act; and the Americans with Disabilities
Amendments Act (ADAAA). Notably, the ADAAA, which was a bipartisan bill passed
unanimously by Congress to support the employment of disabled workers, resulted in a
17% increase in filings.
In FY10, EEOC hired a limited number of much needed staff. However, of the 198 net
hires, only a small number represented frontline staff, e.g., 66 investigators and 8
mediators. This means EEOC added the equivalent of just over one investigator per
office and less than 1 mediator per every 10 offices.
While EEOC is touting its “rebuilding” in light of the loss of 25% of its workforce since
2001, the agency has not nearly replenished the staffing or even hired up to the
congressionally authorized ceiling. As a point of comparison, the last time that EEOC
received close to the recent record high charge filings was 1994, when the agency’s
total staff was 2,832, i.e., 550 more employees than today’s lean workforce of 2,385
employees.
Nevertheless, even these modest additions demonstrate the payoff to the public of
adding frontline resources. For instance in FY10, more workers who brought their
complaints to the EEOC received monetary benefits than in FY09. Also, after years of
steep case backlog increases, EEOC case backlog rose less than 1%.
But this is hardly a happy ending considering that EEOC ended FY10 with a backlog
totaling 86,338 unprocessed cases. Moreover, unusually high closures for FY10 are no
doubt attributable to the agency’s year-end push to dump cases. Although not admitted
by EEOC, its first, second and even third line supervisors closed cases to reach the
unprecedented closure numbers.
The worst impact on the public of EEOC’s continued frontline staffing shortages and
intake inefficiencies is a 10 month average charge processing time. Imagine going to
the EEOC because your boss is making racial slurs, then while you are awaiting an
investigation he retaliates against you for filing a charge. The steady increase in
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retaliation charges, which now represent over one third of discrimination complaints,
likely has to do with the ten month average wait for an EEOC’s investigation. The 10
month wait is also job-killing for applicants, such as a disabled worker who is denied an
interview for a job that is long since filled by the time EEOC investigates.
EEOC uses 180 days as its yardstick for timely charge processing. Yet, in FY10 only
38.03% of private sector charges were resolved within 180 days, as compared to the
agency’s embarrassingly low target of 48%. The agency’s most recent performance
report admits that, “[t]he EEOC’s inability to meet this target was due to a large pending
inventory, an increasing number of charge receipts, and a shortage of front-line staff.”
Likewise, in FY10, only 37.4% of Federal sector cases were resolved in 180 days, as
compared to the agency’s target of 52%. Both private and Federal sector performance
in meeting the FY10 targets were actually worse than in FY09.
Congress is acutely aware of EEOC’s problems, most notably the backlog. The Senate
stated in the FY10 Committee Report:
The Committee remains concerned at the rising backlog in charges of
employment discrimination at the EEOC. This backlog is on pace to reach over
105,000 charges by the end of fiscal year 2011. The Committee is disturbed that
this issue has not been addressed in a systematic or strategic manner. The
Committee is concerned that there is a lack of leadership response and will at the
EEOC to adequately address this problem and it could affect the ability of EEOC
to meets is mission and mandate to promote equal opportunity at the workplace.
In light of these concerns, both the Senate appropriations subcommittee and full
committee as well as the House subcommittee approved the President’s request to
increase EEOC’s FY11 budget from $367 million to $385 million. Of course, Congress
and the President ultimately determined to continue funding the government at the
FY10 spending levels, so the increase thus far has not taken effect. For FY12 it is
critical that EEOC finally obtain the requested $385 million.
Given the state of the economy, the broadening of EEOC’s jurisdiction, the record high
charge filings, and the fact that the agency is sitting on a mountain of unprocessed
cases, it is critical that, at a minimum, resources be maintained at FY10 levels.
Requiring EEOC to operate at FY08 funding levels would mean a $40 million cut and
the loss of 209 employees or 9% of its current total workforce. In its most recent
performance report, EEOC concurs with AFGE Council 216 that backlog reduction will
require building, not slashing, resources:
Long-term efforts to reduce the pending inventory will be dependent on the
agency continuing to build resources and capacity. This will allow us to get
beyond managing the inventory at its current level, and working aggressively to
reduce the inventory of charges so that we can serve the public more efficiently
while effectively enforcing the equal employment laws of this country.
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America’s workers cannot afford an underfunded EEOC in today’s economic
environment.
2.
Without Further Delays, EEOC Should Implement the Union’s National
Intake Plan to Uncork EEOC’s Bottlenecked Charge Process
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AFGE Council 216 will lobby EEOC and Congress to implement a
National Intake Plan to provide substantive assistance to the public and
staff.
Over one year ago, AFGE Council 216 submitted a comprehensive National Intake
Plan, which continues to languish with EEOC’s leadership. The plan calls for staffing
each field office with a dedicated intake model that includes a compliment of positions
and grades able to advance the intake process from pre-charge counseling through
charge filing, including handling the flood of mail/downloadable intake questionnaires.
Current in-house call center staff could be trained and integrated into the dedicated
intake units. A dedicated intake unit with national parameters would also provide a
mechanism for “consistent handling of charges under PCHP [priority charge handling
procedures].” In its FY10 Performance and Accountability Report (“performance
report”), EEOC points to “revitalizing PCHP” as a key to backlog reduction.
AFGE Council 216’s Intake Plan addresses the fact that EEOC is experiencing a
tremendous influx of charges, this year receiving a record high 99,992 charges.
Currently, EEOC does not have an intake model which allows its investigators to
investigate, while dedicated staff handle intake. Instead, EEOC’s investigators rotate
into intake, usually on a daily or weekly basis, to meet with the public and draft charges
of discrimination where appropriate. When investigators are on intake, they are pulled
away from investigating their caseload of discrimination charges and the intake work
follows them. Increasing intake in recent years continues to mean much less time to
investigate cases. This bottleneck is why the average charge processing time is over
10 months and the EEOC has a backlog of 86,388 charges.
AFGE Council 216 spearheaded the successful effort that terminated a failed contract
call center pilot in January 2008. Unfortunately, EEOC stubbornly stuck to the same
failed model when Congress forced the agency to bring the call center in-house.
Specifically, the agency hired an inadequate number of low graded employees,
provided minimal training, gave them mandatory scripts to read and limited per call time
limits.
Instead of dedicated intake staff, EEOC’s in-house call center functions based on that
failed contract call center model. Currently, the primary function of the in-house staff is
to answer phones, then point callers to an on-line downloadable intake questionnaire,
which is forwarded to overwhelmed investigative staff. While expanding access through
technology is generally a good thing, here the public is left frustrated, because there is
not adequate staff to process these new cases.
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AFGE Council 216’s Intake Plan emphasizes streamlined substantive assistance, which
satisfies the interest expressed by EEOC’s congressional appropriators to resolve a
greater number of inquiries at the first point of contact. The plan is also in line with the
new Congress’ emphasis on government agency efficiency. Under this cost-saving
plan, investigative staff, relieved from intake responsibilities, could focus on processing
cases already in the system. EEOC could then work to reduce the backlog.
3.
EEOC’s Unsanctioned Field Restructuring Failed to Increase Efficiencies,
Including Reducing Supervisor to Employee Ratio. Plans to Restructure
EEOC’s Headquarters Should Focus Resources on Tackling the Agency’s
Backlog.
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AFGE Council 216 will lobby Congress to redeploy excess managers to
front line positions. The Council will also fight for transparency in HQ
restructuring and a final plan that makes sense for EEOC’s workforce and
the public.
With Congress focusing on agency efficiencies and reducing backfills to one
replacement for every two departing employees, it is critical that EEOC focus its limited
resources on frontline staffing. The EEOC is notoriously top heavy, a point stressed by
Republican leadership who pushed for a field restructuring plan, which promised to
improve the staffing ratio to one supervisor for ten employees.
Instead, on January 1, 2006, EEOC implemented a controversial nationwide field
restructuring, without required approval from its Senate Appropriations Committee. The
agency carried through with downgrading offices in cities with high minority populations.
However, improving the staffing ratio of frontline employees remains a broken promise.
Now in this time of heightened interest in improving efficiencies, EEOC should be held
to its word to implement the 10 to 1 ratio. EEOC could do so by identifying
management redundancies and redeploying supervisors to the frontline. Going forward,
EEOC’s priority should be to replace departing frontline staff, rather than backfill more
costly management positions. These are budget neutral means to increase frontline
staff. Only by focusing its limited resources on the frontline will EEOC at least prevent
the 86,388 backlog from growing larger and the 10 month processing time from getting
even longer.
Likewise, as EEOC continues to threaten a Headquarters restructuring, AFGE Council
216 will fight for: continued oversight, transparency, the opportunity for meaningful
feedback of draft plans, and a final plan that makes sense to EEOC’s workforce and
addresses the rising backlogs under which the public now suffers.
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4. Proposed Changes to the Federal Sector Hearings Process Short Circuit
Federal Employees’ Rights to Discovery and a Hearing.
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AFGE Council 216 will demand that before making changes EEOC
comply with Congressional oversight and with any applicable agency and
regulatory requirements.
Like in the private sector, Federal workers are negatively impacted by the loss of staff, a
growing backlog of cases and a ten month average processing time. In addition,
Federal workers suffer due to existing restrictions on the authority of the EEOC
Administrative Judges (AJs), who decide their cases. These restrictions impact the
ability of Federal employees to obtain full and fair hearings and receive complete relief.
AFGE Council 216 will continue to fight for additional resources and will support
whatever changes can be accomplished under the regulation and statute to empower
AJs with subpoena authority, so that Federal workers can receive full and fair hearings.
AFGE Council 216 also will continue to address the loss of EEOC AJs who leave to
become Administrative Law Judges (ALJs). The EEOC admits in its recent
performance report that these departures contribute to the Federal sector’s failure to
meet processing time goals, “the Commission’s efforts to achieve this goal have been
compounded by the departure of a number of AJs who accepted ALJ positions at other
agencies, which prompted the reassignment of their complaints, creating larger
caseloads and further delays in complaint processing.” AFGE Council 216 will continue
to urge the Chair to ensure EEOC AJs are competitive with other agencies by making
career grades commensurate with the judicial independence and subpoena authority
needed to perform their duties. AFGE Council 216 will also maintain pressure to backfill
front line AJ positions.
AFGE Council 216 will continue to oppose any proposed Federal agency pilots, which
would allow for variances from the EEO regulations. AFGE Council 216 will remain
vigilant that any pilots must provide for complete, timely, impartial investigations, and
opt-out rights.
AFGE Council 216 will continue to object to “Fast Track” or other proposals, which
would remove judicial independence and cut off discovery and hearings for many
Federal employees. Statements in EEOC's FY10 Budget, confirmed that, "We also plan
to implement a three-track hearings case management process, wherein AJs will
prioritize and track cases into fast, regular or complex discovery/pre-hearing tracks,
based on the level of complexity of each case." AFGE Council 216 will monitor the
status of this issue and demand an open Commission vote, as well as notice and
comment periods as required by regulations.
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The Union’s Accomplishments
In 2010, AFGE Council 216 aggressively raised awareness with Congress, the civil
rights community and the press about EEOC’s budget and staffing crises that threaten
service to the public. As a result of AFGE Council 216’s efforts this year:
1.
The administration requested a modest budget increase from $367 million in
FY10 to $385 million in FY11, as a result of AFGE Council 216’s efforts to keep EEOC’s
funding, staffing, and performance problems in the spotlight. EEOC’s Senate oversight
subcommittee and full committee approved the request, as did EEOC’s House oversight
subcommittee. However, the appropriations process affected by the election year was
not completed.
2.
Senate appropriators recorded their concerns in their Committee report about
EEOC’s growing backlog that “could affect the ability of EEOC to meets is mission and
mandate to promote equal opportunity at the workplace.”
3.
AFGE Council 216 provided written and oral testimony at the House CJS
Subcommittee open witness hearing. The Chairman stated that the record of testimony
was “essential to the development of the fiscal year 2011 bill.” AFGE Council 216 had
thrown its support behind the requested funding increase for EEOC, which was included
in the mark-up. AFGE Council 216 also provided written testimony to the Senate CJS
Subcommittee, which does not hold an in person hearing.
4.
AFGE Council 216 launched public and members-only Facebook pages on the
day of Council President Martin’s House testimony. Activity on both sites has seen
steady growth.
5.
AFGE filed 53 unfair labor practice complaints against the EEOC and procured a
favorable settlement to address the agency’s fourth quarter implementation of unlawful
production standards for investigators, mediators, and administrative judges.
6.
AFGE 216 Council won motions supporting a March 23, 2009 Federal arbitrator’s
ruling that EEOC had a committed a nationwide practice of willfully violating overtime
laws. AFGE Council 216 recommended a claim form and claim process that was
adopted by the arbitrator. AFGE Council 216 has met with the Chair and General
Counsel to press the agency to do right by its employees by compensating them for
their suffered and permitted overtime.
7.
In response to AFGE Council 216’s relentless campaign to end a multi-year
hiring freeze, EEOC began to finally replenish staffing in FY09. EEOC continued hiring
in FY10, ending the year with 198 net new hires. Unfortunately, the hiring included only
minimal frontline staff positions, e.g., 66 investigators and 8 mediators.
8.
AFGE Council 216’s Press Release, “Top Ten Challenges for the New Chair,”
was picked up by numerous media outlets and printed verbatim in the Washington Post.
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9.
AFGE Council 216 pushed Congress to confirm permanent leadership for the
EEOC so that outstanding concerns that continue to impact the public can be
addressed.
10.
AFGE Council 216 has kept up the pressure on EEOC’s administration to act on
the Union’s National Intake Plan, which is consistent with Congressional overseers'
priority in resolving a greater number of inquiries at the first point of contact. Meetings
between AFGE Council 216 and EEOC have occurred, but unfortunately have not
resulted in any changes.
11.
Due to AFGE Council 216’s efforts, Congressional appropriators included
oversight requirements in the EEOC FY10 conference report pertaining to a proposed
“Fast Track” system that could remove judicial independence and eliminate federal
employee’s rights to a hearing and discovery. There has not been further action on
“Fast Track”.
12. AFGE Council 216 provided comments in opposition to the EEOC’s Rulemaking
Proposal allowing implementation of Federal EEO pilot program variances from the
regulations. There has not been further action on the pilots
13.
AFGE Council 216 secured a national agreement that meets its hard fought
interest to have local labor management forums in each of EEOC’s 15 districts.
AFGE Activists Should Urge Their Lawmakers:
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To increase EEOC’s budget to $385 million, consistent with the FY11 budget
request which had been approved by both EEOC’s House and Senate
appropriations subcommittees, as well as the full Senate subcommittee. In no
event should EEOC’s resources be slashed below the FY10 level when its
workload has surged.
To increase EEOC’s actual staffing to 2,832 FTE’s. This was the actual staffing
in 1994, the last time that charge receipts were close to the record high filings of
the last three years. Restoring adequate front line staffing levels would help
workers whose cases are trapped in EEOC’s backlog and are waiting 10 months
to receive help.
To require that EEOC hire front line professional and support staff up to its staff
ceiling, instead of continuing its historic practice of leaving over 200 positions
unfilled.
To require EEOC to adopt a National Intake Plan to provide timely and
substantive assistance to the public, including contributing to the processing of
the flood of mail/downloadable intake questionnaires.
To make EEOC finally compensate its employees for the agency’s willful
overtime law violations, per a federal arbitrator’s final decision dated March 23,
2009.
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To direct EEOC to keep its broken promise to increase efficiencies and flatten
the agency by improving the staffing ratio to 1 supervisor to 10 employees, as
promised in 2006.
To require a transparent process for Headquarters restructuring to ensure that
any final decisions make sense for the EEOC’s workforce and the public.
To demand that EEOC comply with applicable agency, regulatory, and
Congressional oversight requirements before implementing proposed Federal
sector changes that could threaten a Federal employee’s right to discovery and a
hearing or limit Judicial independence.
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