President's Perspective, Summer 2009: In June, the United States Court of Appeals for the District of Columbia Circuit ruled in favor of NTEU on the SEC’s last appeal in the 2002 within grade increase case. While this decision will obviously be a monetary victory for all of the SEC employees who were denied their within grade increases in 2002, it is important to understand why it is also a victory for all SEC employees, by reaffirming their right to have a voice in matters that directly affect them.

SEC employees voted in NTEU as their representative almost a decade ago, in the summer of 2000. Many more recent employees may not be aware of the fact that, before that successful election, SEC management engaged in a prolonged campaign against its own employees’ union organizing efforts, even refusing to consent to the election. For that reason, when NTEU ultimately commenced its representation of SEC employees, strong anti-union sentiment continued to permeate the senior management ranks at the agency.

During NTEU’s first two years representing SEC employees, the Union worked very hard in its successful effort to convince Congress to finally pass “pay parity” legislation. This legislation, which went into effect in 2002, took the SEC off the GS salary schedule and allowed the agency to create a new pay system at substantially higher rates of pay. Prior to the Union’s arrival at the SEC, pay parity had been discussed for years, but never became a reality. It took NTEU’s leadership in Washington to make it happen.

Of course, after the enactment of pay parity, it was then necessary to set up the new pay system – and the agency was required to bargain with the Union over its terms. SEC management, however, instead opted to hire an outside consultant and unilaterally set up the new system, giving only perfunctory lip service to its obligation to bargain with the employees’ Union representatives. Ironically, although it was the Union’s work in Washington that indisputably brought pay parity to the SEC, agency management nevertheless refused to work as a team with those same Union representatives to set up the new pay system.

One result of the SEC’s unilateral implementation of its new pay system was that it stopped providing within grade pay increases to all of its employees in May of 2002. This was illegal because, under federal labor law, an agency simply is not allowed to make a unilateral change of this kind until the bargaining process is completed – which, in this case, it clearly was not.

It cannot be gainsaid that the SEC could have continued to give these WIGIs while simultaneously implementing the new system, until the bargaining process was completed at the Federal Service Impasses Panel. But the SEC chose not to do so.

It is also important to note that, had the SEC chosen instead to work with NTEU on the new pay system, it is highly unlikely that it would have created a system that had a discriminatory impact. It is also highly unlikely that it would have faced years of litigation, ultimately resulting in millions of dollars in payments to its employees – only to find itself finally required to come to the table anyway to negotiate with the Union over a new, more fair and transparent system.

When an agency insists upon unilateral implementation and fails to bargain in good faith, the Union must hold it accountable. Otherwise, what would prevent it from using the same strategy in the future on a host of other important issues affecting employees? It is important to keep this basic principle in mind as the SEC deals with the myriad challenges and changes currently facing the agency.

So...yes, a large number of employees will now receive back pay with interest. But, more importantly for us all, the agency has learned a fundamental lesson about labor-management relations.

by Chapter 293 President Greg Gilman