Following HUD's multiple announcements of pandemic-related actions and management's failure to bargain despite repeated demands from the Union, Council 222 of HUD Locals filed a Grievance of the Parties against the agency on October 19, 2021. Despite HUD's claim that the agency "will be updating our personnel policies in partnership with our unions" when HUD Secretary Marcia Fudge and Deputy Secretary Adrianne Todman announced a return to office date of January 3, 2022, HUD has so far failed to meet with the Union to discuss any policy related to COVID-19.
The grievance asserts that HUD violated our collective bargaining agreement and the Federal Labor-Management Relations Statute by implementing procedures relating to vaccination attestation, vaccination deadlines, and exemptions from vaccination, and by announcing a return to office date without providing the Union with appropriate notice or an opportunity to bargain. Council President Sal Viola sent an open letter to Secretary Fudge and Deputy Secretary Todman as an e-Alert to the membership explaining the grievance.
Although HUD finally agreed to begin bargaining on October 26--more than a month after receiving the Union's September 14 demand to bargain--HUD has still failed to provide proper notice of its planned return to work date to the Union, as required under our collective bargaining agreement. The Union agreed to bargain only over the subjects of our demand to bargain, such as the vaccine mandate. HUD's tactics are an effort to limit the Union's ability to bargain by presenting a fait accompli.
Local 476 is taking an active role in protecting HUD employee rights, including helping craft the demand to bargain and the grievance. The demand to bargain addressed issues including privacy of employees’ medical information, administrative time to get vaccinated and to recover from side effects, exemptions for religious/medical reasons, verification process for employees to show proof of vaccination, mask mandates after full vaccination, and due process protections and consistency of penalties in disciplinary action.
Led by AFGE Local 476 representatives, on July 8, 2021, Council 222 sent HUD’s Office of General Counsel a letter demanding that OGC comply with our collective bargaining agreement in reimbursing mandatory bar dues for attorneys. OGC had imposed new requirements that supervisors approve the requests for reimbursement and attorneys sign the reimbursement claim form, which has no signature block. Our CBA does not give supervisors have authority to deny an attorney’s request for reimbursement. OGC also required attorneys to submit reimbursement requests by August 13, which denied reimbursement to attorneys who paid their bar dues from August 14 through September 30. OGC revised its instructions to comply with our contract, eliminating signature and supervisory approval requirementsand making provisions for reimbursing bar dues that attorneys pay through the end of the fiscal year.
HUD notified REAC employees on May 21 that their official duty stations and locality pay would be changed from their official worksites at a HUD office to where their homes are physically located. This change will cost the construction analysts and other bargaining-unit staff thousands of dollars a year due to reduced locality pay. Council 222 filed a Grievance of the Parties on behalf of the affected employees, asserting that it is "arbitrary, capricious, unreasonable, and an abuse of discretion for REAC and HUD management to determine that the official duty stations are where the affected REAC employees’ homes are located when these employees spend and perform the vast majority of their work hours away from their homes."
HUD's agency ranking improved by 5 places from 19th to 14th out of the 25 midsize agencies according to the 2020 Federal Employee Viewpoint Survey (FEVS). After HUD spent many years in the bottom fourth, this leap--amidst a pandemic and threats to employee rights--reflects employees' satisfaction with being on mandatory full-time telework for most of 2020. When supervisors aren't physically close enough to micromanage employees--a major complaint that the Union frequently hears--employees are happier. Read more about the HUD's 2020 FEVS results and telework at HUD.
AFGE Local 476 President Cynthia F. Carter invoked arbitration after HUD rejected two grievances filed by the Union. Local 476 had filed a grievance of the parties against HUD after at least one division in the Office of the Chief Information Officer improperly issued and applied new performance standards, and followed those contract violations with letters to 17 out of 24 employees in the division alleging they were suddenly performing unacceptaby. The Local's second grievance of the parties related to HUD's refusal to respond to a request for information related to the first grievance. Arbitration hearings for each grievance are expected to be held sometime in January 2022.
The Union's national negotiating team, led by Ashaki Robinson, prevailed in arbitration over HUD. The Union had filed a grievance of the parties against HUD on January 16, 2020, on the grounds that the management negotiating team had violated the Federal Labor-Management Statute by refusing to provide official time "to prepare or pursue grievances (including arbitration of grievances) brought against an agency," in accordance with Trump's Executive Order 13837, which President Biden has rescinded. The complaint asserted additional violations of the Labor-Management Statute.
Katherine Hannah led the management team, which the arbitrator said "did not show a good faith or sincere effort to negotiate at the bargaining table with the Union." Ms. Hannah joined HUD's employee and labor relations office from OPM in January 2017; she left HUD immediately following the arbitration hearings in September 2020. Lori Michalski, acting chief human capital officer, and D'Andra Hankinson, acting deputy director for employee and labor relations, also served on the management negotiating team.
While the Union appreciates the "win," Council 222 views the 2015 contract, which is currently in effect, as fair to both sides. President Biden's repeal of the Trump orders that led to the disputed negotiations means that there is no reason to reinstate negotiations. Our prior agreement had remained in place for 17 years.
In a move that does not bode well for management transparency and honesty under the Biden Administration, HUD employee and labor relations staff claimed that there was no new telework policy that would affect the AFGE bargaining unit.
Federal News Network reported that "HUD is redesigning its own telework program and is soliciting employee feedback," citing Priscilla Clark, the HUD deputy chief human capital officer. HUD has not informed the Union of any proposed changes to the telework policy nor advised the Union of any survey of employees, both of which are required under our collective bargaining agreement. HUD's human capital office, OCHCO, is headed by Lori Michalski, an active member of the management negotiating team that recently was held to have engaged in bad-faith bargaining with the Union.
In response to the Union's query, a labor relations staff member responded, "The communication/quote . . . perhaps may be referencing future activity or activity that has initially involved NON-BUE [bargaining unit employee]."
In spite of that denial, HUD sent out a telework survey to all employees on April 20.
A March 11, 2021, decision by the U.S. Court of Appeals for the Federal Circuit requires agencies to justify putting employees on performance improvement plans (PIPs). That case, Santos v. NASA, means that agencies can no longer put employees on a PIP without advance notice and without having evidence of poor performance before the PIP.
As a result, HUD has begun issuing "Santos" letters, or "letters of performance concern," that allege that employees have been performing unsatisfactorily. See the article below. The letters provide examples of the so-called unsatisfactory performance.
If you have received a letter of performance concern, contact the Union immediately for help.
Do you know your rights? You don't have to go it alone! Read more about your rights and how AFGE Local 476 can help you.
On April 26, 2021, President Biden signed an executive order that established a task force with four main goals:
HUD Secretary Marcia Fudge or her designee is named to serve on the task force. The executive order applies to the federal government and its employees as well as to the private sector. Continued.
OPM is preparing guidance to help agencies manage telework after the pandemic ends, according to Federal News Network. FNN quoted Rob Shriver, OPM's director of employee services, who said about telework, "There’s no interest in returning to a February 2020 footing. There has been so much good work that has been done out of an emergency."
The Department of Agriculture plans to expand its prior telework policy and is reviewing all USDA positions to determine whether some of them could be completely virtual.
Read more about what's happening in other agencies, and find out who said, "There’s a lot more work than we thought that could be performed fully remotely."