Management Threatens Implementation of Disputed Stateside Contract

Following the lead of Betsy DeVos in her treatment of Department of Education employees, DoDEA has informed FEA's Stateside Region it intends to unilaterally impose an unsigned contract on the Stateside bargaining unit despite FEA-Stateside challenging a key provision of that contract.

FEA's Stateside Region (FEA-SR) is currently weighing legal options and will provide guidance to members in the near future. Because both sides have not finalized and signed a new Master Labor Agreement (MLA), it remains FEA-SR's position that the old, expiring MLA remains in full force and effect.

The major dispute between the parties is a section of the successor MLA on making up school days lost due to inclement weather or other emergency closures.

The Federal Service Impasses Panel (FSIP) ordered the inclusion in the successor contract of an article allowing DoDEA to require employees to work additional days with no added compensation to make up for school days lost due to closures.

FEA-SR has disputed the FSIP's jurisdiction over that article and, in accordance with federal law, has refused to sign the successor MLA until the dispute over that article is resolved.

FEA-SR has requested the agency withdraw its proposal on inclement weather days so that the parties can go forward with finalizing the successor MLA. The agency has not responded to FEA-SR's request to resolve the issue in dispute.

Instead, DoDEA has informed FEA-SR that it intends to unilaterally implement the unsigned successor MLA, including the article on make up days.

Federal law does not permit, in any circumstances, an agency to implement an unsigned contract when the parties have agreed to execute a final written agreement.

The only precedent for an agency attempting to unilaterally implement an unsigned and unexecuted bargaining agreement occurred in 2018, when Betsy DeVos' Department of Education (DOE) imposed a term collective bargaining agreement on its employees represented by the American Federation of Government Employees (AFGE). That case is currently in litigation, however, the Federal Labor Relations Authority (FLRA) Regional Office has found merit in the unfair labor practice charge AFGE filed against the DOE.

It is worth remembering that DoDEA had previously threatened to unilaterally impose a new contract on its employees. The agency did so in February 2018, when FEA-SR and DoDEA were still in the process of negotiating a successor to the current Stateside MLA. At that time, DoDEA negotiators threatened to walk away from the negotiations process and simply impose the working conditions management wanted.

Soon after that threat, DoDEA announced plans to ask the FSIP to take jurisdiction over the Stateside contract negotiations and impose terms of an agreement, which the FSIP is authorized to do in order to settle negotiation impasses. The FSIP agreed to do so and issued its ruling in late 2018. Following their trend of overwhelmingly supporting management positions in contract impasses, the Trump-appointed members of the FSIP ruled in favor of management on nearly all disputed articles in the successor MLA. (see FEA's update on that FSIP ruling for more information)

Because utilizing the FSIP to resolve a perceived impasse is a legal option for management to pursue, FEA-SR could not prevent the FSIP from taking jurisdiction over the negotiations or from issuing its ruling on the disputed articles that were presented within the bounds of the law.

The issue of make up days, however, was not such an issue. FEA-SR and management had already signed an agreement covering this issue so it should not have been considered at impasse and the FSIP did not have jurisdiction to rule on that section of the successor MLA.

FEA-SR does have the right to challenge the FSIP's jurisdiction over that make up day issue and until that disputed article of the successor MLA is withdrawn or resolved through proper legal channels, FEA-SR will not recognize the validity of the unsigned successor MLA. FEA-SR is within its rights to refuse to sign the successor MLA because of this dispute.

The agency has not indicated how or when it intends to implement the provisions imposed by the FSIP, as previously reported in the above link and through other FEA media. Those provisions include:
  • Tying increases to the Stateside Certified Salary Schedules to the same percentage of increase given to federal GS workers in the same calendar year. Employees will also continue to receive a step increase each year until they reach the top of their schedule.
  • One hour may be added to the work day, up to a maximum of 24 times per academic quarter, with no additional compensation. Although this possible 96 hours of added work time was strongly objected to by the Association, it was ultimately agreed to after the FSIP made clear the only alternative would be for the body to impose double that amount, as sought by management.
  • Protections remain in place for a guaranteed minimum of 225 minutes of planning time per week and one full day per academic quarter to enter grades.
  • As ruled by the FSIP, only academic credits an educator earns in their field of certification or in general education will be counted on the salary schedule. Also, the FSIP ruled that only graduate credits earned after the awarding of a graduate degree will be counted on the salary schedule.
  • A provision stating employees reassigned to new subjects/classrooms or to new school buildings should normally be given a minimum amount of release time to plan, prepare rooms, pack materials, etc.

As stated above, FEA-SR is examining legal options in reaction to management's stated intention to illegally implement this unsigned successor MLA. Additional information for members will be forthcoming. It remains FEA-SR's position that the successor MLA will not become effective until such time as the agreement is finalized and signed by both parties (FEA-SR and DoDEA). The expiring MLA remains in full force and effect until the successor agreement is executed and approved in accordance with federal law and the parties' agreed upon ground rules.