4/23/13:  Late last week, the Union filed with the Federal Labor Relations Board an unfair labor practice (ULP) charge against the SEC for its refusal to bargain over important changes to its office space policy. Under the SEC’s new policy, many SEC professionals will be required to double up in smaller offices. The Union is concerned about the negative impact that this new policy will have upon employee morale, recruitment and retention of highly skilled professionals, and the efficiency with which the SEC will be able to meet its mission in the future. Under the law, the SEC is required to bargain over these changes with its employees’ representatives. As with other recent issues, however, the SEC appears willing to ignore its legal obligations by unilaterally implementing whatever policies it sees fit.

There are a number of things that the Union could negotiate with the SEC that would mitigate the impact of any shortage of office space at the agency. For example, the SEC could agree to allocate and use space in a given office differently, freeing up more space for professional offices. The SEC also could agree to more liberal expanded telework policies which would permit employees who share offices to have more time to work in them without the distraction of the presence of their officemate. It may also be possible to eliminate offices for expanded telework employees altogether, in favor of “hoteling” arrangements that save a tremendous amount of space. By simply refusing to bargain with the employees’ Union representatives, SEC senior management is sending the clear signal that it simply does not care about employees’ concerns, nor about potential mitigation strategies to address those concerns.

The history of this matter goes back a few years. During the period from late 2009 through late 2011, the SEC and the Union engaged in negotiations over a new office space policy at the agency.  The primary dispute between the parties concerned whether employees would be entitled to single offices based upon the nature of their work. After failing to reach an agreement, the parties sought mediation with the Federal Mediation and Conciliation Service. When that mediation failed, the Union requested intervention from the Federal Service Impasses Panel (FSIP) to resolve the dispute. In October 2011, on the eve of providing submissions to the FSIP, the parties reached an agreement on office space policy at the SEC which provided, in part, that all employees in Grades SK-12 and above, as well as most employees in Grade SK-11, would receive a single office going forward.

This year, in connection with the SEC’s efforts to secure a new lease for the Philadelphia Regional Office, the SEC informed the Union that a number of higher graded employees would be required to double up in offices in the new Philadelphia office building. Because this constitutes a violation of the recently negotiated space policy, the Union demanded bargaining over the change. The SEC, however, refused to bargain with the Union.

During the course of this dispute, the SEC also informed the Union that on August 1, 2011, the agency had signed an agreement with the General Services Administration (GSA) to administer the SEC’s space acquisition. This GSA agreement was thus signed while the SEC was negotiating with the Union over the new space policy. Yet, the SEC never informed the Union that it had signed this GSA agreement during the course of its negotiations in 2011. The GSA agreement appears to alter the SEC’s rights with respect to its administration of space policy, and yet the SEC intentionally concealed this fact from the Union during the negotiations. This is clear evidence that the SEC was engaging in bad faith negotiations with the Union over office space policy.

Despite the SEC’s current position, however, it is unclear whether the GSA agreement actually impacts the space policy that the SEC negotiated with the Union in any event. Indeed, the GSA agreement (which you may review here), requires that the GSA acquire space based on SEC “demonstrated needs and requirements.” The space policy negotiated by the Union is undeniably an agency-wide negotiated agreement or requirement that the SEC and GSA are obligated to follow. Thus, despite the fact that the SEC negotiated a separate agreement with GSA regarding office space administration, the GSA agreement should preserve the primacy of the Union-negotiated space policy. Furthermore, the GSA agreement may be terminated at any time by either party, including the SEC, on ninety days notice – which demonstrates that the SEC is willfully violating its agreement with Union.

The SEC's new space policy requiring doubling up of professional staff will, over the course of time, have a tremendous impact upon every office at the agency. As leases expire and new leases are negotiated, the number of doubled up employees will grow.

The SEC is currently facing serious morale issues, as is clearly evidenced by its plummeting Federal Employee Viewpoint Survey scores over the past several years. Indeed, the agency is currently ranked near last place among federal agencies on the Best Places to Work list. Requiring doubling up will exacerbate this trend.

More importantly, refusing to bargain over the new policy sends an even more negative signal to SEC employees. SEC senior management continues to pay lip service to its profound concern over morale problems at the agency, and its willingness to take steps to improve morale, even as it simultaneously willfully fails and refuses to engage in the type of active collaboration with stakeholders at the agency over issues like office space that are commonplace in more successful organizations. We hope to see this trend reversed under new senior management.

We will keep you posted about the status of the office space policy ULP.