Future of the “Administrative State?”

[Maria C.]

Nov 14, 2024 13:50:56 GMT -5 Topperlaw said:

My understanding of our (ALJ) Union Contract is: 1) Notice must be provided to reopen negotiations; 2) months pass while agency and Union negotiate; 3) Agency unilaterally ends telework after negotiations break down; 4) Union proceeds to take the appeal through every level of the appeal process (multiple years) 5) Finally Agency wins all appeals and can remove teleworking.
Correct me if I'm wrong but my understanding would be teleworking can't end until Union has lost all the way through all 5 levels discussed above. Furthermore, I've been told it is VERY hard for the Agency to remove a benefit such as teleworking that it has already agreed to.

The scenario could play out as follows:

No request to reopen contract to bargain, management simply gives a directive that telework is no longer permitted. You either abide by the directive or you’re fired.

At that point, you have a breach of the CBA contract (depending on whatever else is unilaterally changed “possibly” a repudiation) and your recourse is to file a nationwide grievance and /or an unfair labor practice “ULP” with the FLRA.

Grievance machinery moves super slow….good luck seeing arbitration in year or two. Even IF you win the grievance, management can still refuse to honor the grievance award and then you’re stuck trying to enforce an arbitrator’s award (Federal Court moves even slower).

Unfair Labor Practice filing / investigation takes a while too. It wasn’t too long ago that the FLRA was defunct (per se) without a Board quorum so no Board decisions could issue.



While all the above plays out, you abide by the directive because you want to keep your job.
A contract is only as good as the people that agree to abide by its terms.

Sorry for the doom and gloom, just speaking from my past labor law experience

[neufenland]

Nov 14, 2024 16:01:53 GMT -5 Maria C. said:

Nov 14, 2024 13:50:56 GMT -5 Topperlaw said:

My understanding of our (ALJ) Union Contract is: 1) Notice must be provided to reopen negotiations; 2) months pass while agency and Union negotiate; 3) Agency unilaterally ends telework after negotiations break down; 4) Union proceeds to take the appeal through every level of the appeal process (multiple years) 5) Finally Agency wins all appeals and can remove teleworking.
Correct me if I'm wrong but my understanding would be teleworking can't end until Union has lost all the way through all 5 levels discussed above. Furthermore, I've been told it is VERY hard for the Agency to remove a benefit such as teleworking that it has already agreed to.

The scenario could play out as follows:

No request to reopen contract to bargain, management simply gives a directive that telework is no longer permitted. You either abide by the directive or you’re fired.

At that point, you have a breach of the CBA contract (depending on whatever else is unilaterally changed “possibly” a repudiation) and your recourse is to file a nationwide grievance and /or an unfair labor practice “ULP” with the FLRA.

Grievance machinery moves super slow….good luck seeing arbitration in year or two. Even IF you win the grievance, management can still refuse to honor the grievance award and then you’re stuck trying to enforce an arbitrator’s award (Federal Court moves even slower).

Unfair Labor Practice filing / investigation takes a while too. It wasn’t too long ago that the FLRA was defunct (per se) without a Board quorum so no Board decisions could issue.



While all the above plays out, you abide by the directive because you want to keep your job.
A contract is only as good as the people that agree to abide by its terms.

Sorry for the doom and gloom, just speaking from my past labor law experience

I guess the quirk there is that SSA would have to go to MSPB to determine if good cause existed to fire you (as an ALJ). I can’t pretend to know what would happen there, but “the agency violated our CBA and it’s being litigated” might not equal good cause? I dunno. It’s not my area of expertise, but sitting ALJs, at least for now, have to have a ruling from the MSPB before they get removed, which differs from regular GS folks, who don’t get a hearing until after the adverse action has occurred.

[rmspringfield]

I seem to recall when telework was axed during the 45 administration. I was an outsider at the time so most of my info is double hearsay so take it for what it's worth.

Essentially AFGE had a telework provision in their contract when the 45 administration axed telework. At my local OHO and Field Office they actually confiscated employees laptops. They were directed to turn them in within a specific time and if they didn't they sent someone to the employees homes to collect them as they were government property. The AFGE could file what grievances they wanted but as a practical matter the grievance and a $1.50 got a cup of coffee. No laptop, no way to work unless you came in. You would just exhaust your leave until you wouldn't get paid if you didn't show up.

I remember at my local OHO it was a big mess because our local OHO was combined with our local SSA Field Office in one big brand new SSA Center around 2008. That building didn't have enough parking. Because SSA had figured telework was going to be the wave of the future and figured it didn't need all that real estate for parking considering X percent of employees were expected to telework.

And then COVID hit and the security officers that were tasked with confiscating all of those laptops were tasked with returning them to everyone at home because no one could return to the office.

All that is to say, if the 47 admin becomes so inclined, I would not expect a well thought out and smooth process.

[trp888]

Nov 14, 2024 23:34:50 GMT -5 rmspringfield said:

I seem to recall when telework was axed during the 45 administration. I was an outsider at the time so most of my info is double hearsay so take it for what it's worth.

Essentially AFGE had a telework provision in their contract when the 45 administration axed telework. At my local OHO and Field Office they actually confiscated employees laptops. They were directed to turn them in within a specific time and if they didn't they sent someone to the employees homes to collect them as they were government property. The AFGE could file what grievances they wanted but as a practical matter the grievance and a $1.50 got a cup of coffee. No laptop, no way to work unless you came in. You would just exhaust your leave until you wouldn't get paid if you didn't show up.

I remember at my local OHO it was a big mess because our local OHO was combined with our local SSA Field Office in one big brand new SSA Center around 2008. That building didn't have enough parking. Because SSA had figured telework was going to be the wave of the future and figured it didn't need all that real estate for parking considering X percent of employees were expected to telework.

And then COVID hit and the security officers that were tasked with confiscating all of those laptops were tasked with returning them to everyone at home because no one could return to the office.

All that is to say, if the 47 admin becomes so inclined, I would not expect a well thought out and smooth process.

First, when 47 was 45, AFGE & NTEU contracts were up for renegotiations during the 45 term. This time however, the contracts are already done and “good” through 2029. Of course, like other posters have said, those contacts may just be ignored by whoever 47 puts in charge of the Agency/ 47 can just X telework across the board forcing everyone to go in until the Union complains are worked through the “system” that will also be full of 47 appointees.

That being said, in my decade+ at this agency I have always had my laptop as my main computer - I have never heard of anyone actually physically confiscating a laptop, nor have I ever heard of anyone having agents sent to their homes to take the laptops purely because of telework being rescinded. In fact, if they told us to turn in our laptops, they would literally be no way for us OHO people to work in the office, because we dock our laptops at our office desks- there are no “desktop computers” anymore. I’m quite curious as to where this “confiscating laptops” may have happened??, because I don’t know of anyone that uses an actual desktop anymore in any kind of office in OHO… Field Offices may be different, but HOs and OAO offices all use laptops as their main computers in and out of office.

[neufenland]

Nov 15, 2024 9:36:47 GMT -5 trp888 said:

Nov 14, 2024 23:34:50 GMT -5 rmspringfield said:

I seem to recall when telework was axed during the 45 administration. I was an outsider at the time so most of my info is double hearsay so take it for what it's worth.

Essentially AFGE had a telework provision in their contract when the 45 administration axed telework. At my local OHO and Field Office they actually confiscated employees laptops. They were directed to turn them in within a specific time and if they didn't they sent someone to the employees homes to collect them as they were government property. The AFGE could file what grievances they wanted but as a practical matter the grievance and a $1.50 got a cup of coffee. No laptop, no way to work unless you came in. You would just exhaust your leave until you wouldn't get paid if you didn't show up.

I remember at my local OHO it was a big mess because our local OHO was combined with our local SSA Field Office in one big brand new SSA Center around 2008. That building didn't have enough parking. Because SSA had figured telework was going to be the wave of the future and figured it didn't need all that real estate for parking considering X percent of employees were expected to telework.

And then COVID hit and the security officers that were tasked with confiscating all of those laptops were tasked with returning them to everyone at home because no one could return to the office.

All that is to say, if the 47 admin becomes so inclined, I would not expect a well thought out and smooth process.

First, when 47 was 45, AFGE & NTEU contracts were up for renegotiations during the 45 term. This time however, the contracts are already done and “good” through 2029. Of course, like other posters have said, those contacts may just be ignored by whoever 47 puts in charge of the Agency/ 47 can just X telework across the board forcing everyone to go in until the Union complains are worked through the “system” that will also be full of 47 appointees.

That being said, in my decade+ at this agency I have always had my laptop as my main computer - I have never heard of anyone actually physically confiscating a laptop, nor have I ever heard of anyone having agents sent to their homes to take the laptops purely because of telework being rescinded. In fact, if they told us to turn in our laptops, they would literally be no way for us OHO people to work in the office, because we dock our laptops at our office desks- there are no “desktop computers” anymore. I’m quite curious as to where this “confiscating laptops” may have happened??, because I don’t know of anyone that uses an actual desktop anymore in any kind of office in OHO… Field Offices may be different, but HOs and OAO offices all use laptops as their main computers in and out of office.

I haven’t had an actual desktop computer since early in term one of the Obama administration.  

[intothewild]

Nov 15, 2024 9:59:54 GMT -5 neufenland said:

Nov 15, 2024 9:36:47 GMT -5 trp888 said:

First, when 47 was 45, AFGE & NTEU contracts were up for renegotiations during the 45 term. This time however, the contracts are already done and “good” through 2029. Of course, like other posters have said, those contacts may just be ignored by whoever 47 puts in charge of the Agency/ 47 can just X telework across the board forcing everyone to go in until the Union complains are worked through the “system” that will also be full of 47 appointees.

That being said, in my decade+ at this agency I have always had my laptop as my main computer - I have never heard of anyone actually physically confiscating a laptop, nor have I ever heard of anyone having agents sent to their homes to take the laptops purely because of telework being rescinded. In fact, if they told us to turn in our laptops, they would literally be no way for us OHO people to work in the office, because we dock our laptops at our office desks- there are no “desktop computers” anymore. I’m quite curious as to where this “confiscating laptops” may have happened??, because I don’t know of anyone that uses an actual desktop anymore in any kind of office in OHO… Field Offices may be different, but HOs and OAO offices all use laptops as their main computers in and out of office.

I haven’t had an actual desktop computer since early in term one of the Obama administration.  

Yea no one uses desktops anymore.

[jimmyjiggles]

Apropos of nothing- desktops still have their use. Some websites have functionality that can only be used by the desktop versions of these sites. For example, on Amazon, you can only look up archived orders from a desktop. There’s also areas in returns, reporting lost deliveries, etc that can only be accessed by the desktop version of Amazon.

At least that’s why I still have a desktop!

[hillsarealive]

Nov 15, 2024 13:13:39 GMT -5 jimmyjiggles said:

Apropos of nothing- desktops still have their use. Some websites have functionality that can only be used by the desktop versions of these sites. For example, on Amazon, you can only look up archived orders from a desktop. There’s also areas in returns, reporting lost deliveries, etc that can only be accessed by the desktop version of Amazon.

At least that’s why I still have a desktop!

I think you can access the "desktop" version of Amazon on a laptop.  Just not on a mobile device like a phone or iPad, unless you have a mobile browser that supports a desktop view (like Firefox for example).  The nomenclature is confusing here, I admit, but many websites have a mobile version for phones and tablets and a desktop version for "real" computers (desktop or laptop).  

But I'm a lawyer not a computer person so what do I know. 

I do think desktops still have value, in that you get more computing power for your money compared with a laptop.

[jagvet]

Nov 14, 2024 13:50:56 GMT -5 Topperlaw said:

My understanding of our (ALJ) Union Contract is: 1) Notice must be provided to reopen negotiations; 2) months pass while agency and Union negotiate; 3) Agency unilaterally ends telework after negotiations break down; 4) Union proceeds to take the appeal through every level of the appeal process (multiple years) 5) Finally Agency wins all appeals and can remove teleworking.
Correct me if I'm wrong but my understanding would be teleworking can't end until Union has lost all the way through all 5 levels discussed above. Furthermore, I've been told it is VERY hard for the Agency to remove a benefit such as teleworking that it has already agreed to.

I believe your interpretation is correct; however, a statutory change to federal collective bargaining could change everything on its effective date.    Another separate factor could be an executive order restricting telework.  That could short-circuit the grievance and bargaining rights. 

I saw the GSA rampage during the Obama administration forcing many agencies to require telework, hotelling, job-sharing and so on with the concomitant major reductions in office space.  I don't know if SSA went down that path (it doesn't seem so from my casual observations), but  that might be a bigger impediment to ending telework than a CBA.

Anyway, change is in the offing. 

[jagvet]

Nov 14, 2024 23:34:50 GMT -5 rmspringfield said:

I seem to recall when telework was axed during the 45 administration. I was an outsider at the time so most of my info is double hearsay so take it for what it's worth.

I was inside since Obama.  This story does not ring true.  My OHO office never had such a thing happen. In fact, a close relative works in another agency, and was allowed to greatly expand her telework several times during Trump's term until March 2020.  During Biden's term, as pandemic restrictions ended, she was required to go into the office for many more meetings than ever under Trump, although during the last year, that became rare.  I think people need to forget about Trump 45 apocrypha as guidance for 47.  

Two certainties:

1. O'Malley is history.
2. There will be changes because people voted for changes. Resistance is futile, earthlings.

Bon voyage.

[bafzzad]

Nov 15, 2024 9:36:47 GMT -5 trp888 said:

First, when 47 was 45, AFGE & NTEU contracts were up for renegotiations during the 45 term. This time however, the contracts are already done and “good” through 2029. Of course, like other posters have said, those contacts may just be ignored by whoever 47 puts in charge of the Agency/ 47 can just X telework across the board forcing everyone to go in until the Union complains are worked through the “system” that will also be full of 47 appointees.

That being said, in my decade+ at this agency I have always had my laptop as my main computer - I have never heard of anyone actually physically confiscating a laptop, nor have I ever heard of anyone having agents sent to their homes to take the laptops purely because of telework being rescinded. In fact, if they told us to turn in our laptops, they would literally be no way for us OHO people to work in the office, because we dock our laptops at our office desks- there are no “desktop computers” anymore. I’m quite curious as to where this “confiscating laptops” may have happened??, because I don’t know of anyone that uses an actual desktop anymore in any kind of office in OHO… Field Offices may be different, but HOs and OAO offices all use laptops as their main computers in and out of office.

You seem hung up on the word “confiscate” to initimate that what the poster to whom you are responding didn’t happen. I did not read “confiscate” to mean “taken away, never to be seen again” but rather “withdraw the permission to have government IT equipment at home and direct the equipment be returned to agency premises, the only place where the employee remains authorized to use them.”

There does not seem to be anything ultra vires in that.

[johnthornton]

[/quote]
I guess the quirk there is that SSA would have to go to MSPB to determine if good cause existed to fire you (as an ALJ). I can’t pretend to know what would happen there, but “the agency violated our CBA and it’s being litigated” might not equal good cause? I dunno. It’s not my area of expertise, but sitting ALJs, at least for now, have to have a ruling from the MSPB before they get removed, which differs from regular GS folks, who don’t get a hearing until after the adverse action has occurred.
[/quote]

Yes. If all of the retirement eligible judges who don't want to return to the office based on an unlawful directive decided to decline to do so, the agency would face a real problem. Rather than retiring, we can stand on the contract and let them suspend us and try to remove us. During that extended time period, we get full pay and full benefits. If we win, we get reinstated. If we lose, we just retire like we planned to do anyway. The agency can't replace us while the litigation is ongoing. I assume the agency would consider this scenario before it too such a stupid course of action.

[february]

Nov 15, 2024 16:38:43 GMT -5 johnthornton said:

I guess the quirk there is that SSA would have to go to MSPB to determine if good cause existed to fire you (as an ALJ). I can’t pretend to know what would happen there, but “the agency violated our CBA and it’s being litigated” might not equal good cause? I dunno. It’s not my area of expertise, but sitting ALJs, at least for now, have to have a ruling from the MSPB before they get removed, which differs from regular GS folks, who don’t get a hearing until after the adverse action has occurred.
[/quote]

Yes. If all of the retirement eligible judges who don't want to return to the office based on an unlawful directive decided to decline to do so, the agency would face a real problem. Rather than retiring, we can stand on the contract and let them suspend us and try to remove us. During that extended time period, we get full pay and full benefits. If we win, we get reinstated. If we lose, we just retire like we planned to do anyway. The agency can't replace us while the litigation is ongoing. I assume the agency would consider this scenario before it too such a stupid course of action.
[/quote]


This assumes that the new powers that be will abide by the applicable laws and rules. Ought they to do that? Of course. Will they do that? I certainly hope so, but there’s plenty of compelling evidence to support a fear that they might not. Federal employees should be giving serious thought right now to what their exit strategy is going to be if their job evaporates or is made so unbearable that they effectively have no choice but to leave. We can hope that the administrative state manages to weather the impending tempest relatively intact, but I don’t think that’s something anyone should assume will happen.

[badger]

The prior Commissioner attempted to reduce telework, but I don't remember him trying to take away laptops to eliminate it. He never got the chance to enact his plans. During COVID, AFGE accepted a contract with reduced telework and NTEU opted to bring the issue to an impasse panel and won 4 days of telework. NTEU's contract doesn't expire until the next administration.

As for all the doom and gloom, all three unions have CBAs in place. While unfair labor practices take a long time to resolve, the FLRA has an injunction mechanism that the unions would surely attempt to trigger if the agency unilaterally eliminates telework.

[hopefalj]

Nov 15, 2024 14:37:58 GMT -5 jagvet said:

Nov 14, 2024 23:34:50 GMT -5 rmspringfield said:

I seem to recall when telework was axed during the 45 administration. I was an outsider at the time so most of my info is double hearsay so take it for what it's worth.

I was inside since Obama.  This story does not ring true.  My OHO office never had such a thing happen. In fact, a close relative works in another agency, and was allowed to greatly expand her telework several times during Trump's term until March 2020.  During Biden's term, as pandemic restrictions ended, she was required to go into the office for many more meetings than ever under Trump, although during the last year, that became rare.  I think people need to forget about Trump 45 apocrypha as guidance for 47.  

Two certainties:

1. O'Malley is history.
2. There will be changes because people voted for changes. Resistance is futile, earthlings.

Bon voyage.

You personally may not have had a change in telework, but staff certainly did. So did numerous other SSA units. So yeah, the story does kind of check out. The reason you may not remember it is because the specific OHO staff telework reduction went into effect right before Covid and was rescinded by necessity just a couple of months later.

But you’re right about resistance.

[neufenland]

Having an exit strategy is all well and good, but you can’t really know what will happen until it does. I recently watched an interview with Bill Burr and he said “You’re going to be ok. And even if you’re not going to be ok, isn’t it better to think you’ll be ok and when you’re not ok, just deal with it then? Why ruin the now?”

You’ve got a couple of months to start thinking of things if you’re so inclined, but don’t let worry ruin the now. There’s nothing we can do about it.

This post is a little too much like fortune cookie psychology for my usual cynical tastes, but there it is.  

[johnthornton]

Nov 15, 2024 18:24:06 GMT -5 badger said:

While unfair labor practices take a long time to resolve, the FLRA has an injunction mechanism that the unions would surely attempt to trigger if the agency unilaterally eliminates telework.

I would be interested in learning more about the injunction procedure at the FLRA. FLRA is still staffed with Biden appointees. Can Trump fire all of them on day one? Without an injunction procedure and without the ability to order money damages, any violation of the contract comes at little risk for the agency.

[Maria C.]

Nov 15, 2024 19:54:01 GMT -5 johnthornton said:

Nov 15, 2024 18:24:06 GMT -5 badger said:

While unfair labor practices take a long time to resolve, the FLRA has an injunction mechanism that the unions would surely attempt to trigger if the agency unilaterally eliminates telework.

I would be interested in learning more about the injunction procedure at the FLRA. FLRA is still staffed with Biden appointees. Can Trump fire all of them on day one? Without an injunction procedure and without the ability to order money damages, any violation of the contract comes at little risk for the agency.

FLRA (similar to the NLRB- which is where my former labor experience is) injunctions are sought under the name of the General Counsel. The General Counsel is an appointee under whoever the current administration is (typically confirmed by the senate or a recess).

When 46 took office, he immediately removed the General Counsel at the NLRB (appointed under 45). I imagine 47 would do the same this term at the FLRA/NLRB. It’s the political wind.

Note, it took a while for 46’s appointee at the FLRA to be confirmed (see www.govexec.com/workforce/2023/06/flras-general-counsel-post-could-finally-be-filled-new-nominee/387190/

For that reason, I do not think an injunction would be likely.

I am by no means saying any of this is “just.”
Just my two cents.

[johnthornton]

Nov 16, 2024 7:26:27 GMT -5 Maria C. said:

Nov 15, 2024 19:54:01 GMT -5 johnthornton said:

I would be interested in learning more about the injunction procedure at the FLRA. FLRA is still staffed with Biden appointees. Can Trump fire all of them on day one? Without an injunction procedure and without the ability to order money damages, any violation of the contract comes at little risk for the agency.

FLRA (similar to the NLRB- which is where my former labor experience is) injunctions are sought under the name of the General Counsel. The General Counsel is an appointee under whoever the current administration is (typically confirmed by the senate or a recess).

When 46 took office, he immediately removed the General Counsel at the NLRB (appointed under 45). I imagine 47 would do the same this term at the FLRA/NLRB. It’s the political wind.

Note, it took a while for 46’s appointee at the FLRA to be confirmed (see www.govexec.com/workforce/2023/06/flras-general-counsel-post-could-finally-be-filled-new-nominee/387190/

For that reason, I do not think an injunction would be likely.

I am by no means saying any of this is “just.”
Just my two cents.

So, no right of the union to obtain an injunction? So basically, a worthless remedy.

For those who are saying we are worrying needlessly--remember that Vivek has said that if Federal employees were forced back into the office, at least 25% would retire or quit.

[aljnoobie]

Playing devil's advocate here (pun intended), but putting aside how it is going to potentially cause us "pain" due to increased work and/or change in work/life balance; isn't there a large grain of truth to the maxim that the administrative state is inefficient and bloated? I know that I started as an ALJ pre-covid, coming from the private sector, and have been somewhat appalled at the number of govt. employees that a) cannot do their jobs but have been kept because nobody wants to do the work to fire them/battle with the union/deal with HR, b) assume that their work/life balance and working conditions are a sacred blessing passed from on high (extremely generous sick time use policies, federal holidays and early quits, incentive awards or cash and time for basically doing your job), and c) are redundant and could have their positions combined with others to create efficiencies and save money.

Our office management staff has been reduced drastically (by over 65%), with no loss of efficiency, which just goes to show that it was horribly overstaffed to begin with - isn't that true throughout government? I know it is easy to say that as a "recent" outsider, but the lack of any profit motive or need for efficiency seems to create a burgeoning class of bureaucrats that seem to exist only to multiply and "protect their turf." I want that handled, downsized, etc. so that there are more of my tax dollars available to use for things that government is supposed to do, like national security (and yes, the military is one of the worst offenders - the number of general officers today per troop/sailor/soldier has doubled from the Vietnam era and is 4 times that of WWII - and their perks/staff/costs have bloated even further).

To be clear - I am talking about reducing actual bloat and inefficiency - not gutting departments because you disagree with them politically - that is pure bull pucky.  Just my 2 cents....I have my popcorn in hand....proceed with the obligatory castigation of the man who said the emperor has no clothes...