SEC Chair Gary Gensler has now made it clear that he intends to pursue an aggressive, anti-employee agenda in his negotiations at the agency over SEC employees' pay, benefits and work-life programs. In the past two weeks, he has sought to cast aside over twenty years of negotiating history between the SEC and its own workforce by trying to compel the union to combine bargaining over the parties’ Compensation Agreement and the entirely separate Collective Bargaining Agreement (“CBA”). This move constitutes a transparent attempt by Mr. Gensler to increase his leverage over his own employees during the talks over both contracts, by seeking to “horse trade” SEC employees’ compensation benefits against CBA work-life programs.
The union has responded to this combative move by declaring impasse over the “ground rules” talks, and seeking assistance from the Federal Mediation and Conciliation Service (“FMCS”), which may be the first step towards ultimately resolving the dispute at the Federal Service Impasses Panel (“FSIP”). This is the first time in over twenty years that an SEC Chairman, during any administration, has forced the union to impasse in a dispute over the ground rules for negotiating our basic contracts. It serves as an important harbinger for how Mr. Gensler intends to deal with his workforce during our substantive negotiations over your pay and benefits. Mr. Gensler’s team scoffed at our rejection of their one-sided ground rules changes, telling us that the staff would not understand or care about such “inside baseball.” We are confident that our membership understands perfectly well the consequences of allowing one side to change the rules of bargaining to attempt to gain an unfair advantage.
The union’s Compensation Agreement covers the main features of SEC employees’ pay and other compensation benefits at the SEC. The CBA, by contrast, addresses terms and conditions of employment and work-life programs, such as telework, alternative work schedules and employee disciplinary procedures. As the union has previously reported, the terms of these two separate contracts end in January 2022, meaning that new agreements need to be negotiated as soon as possible. Over the course of the summer, the union urged Mr. Gensler to begin at least informal discussions about the most pressing and time sensitive issues, so that we could make best efforts to narrow any areas of disagreement. He refused.
Since the union’s inception at the agency in 2000, the SEC and the union have always negotiated the Compensation Agreement separately from the CBA. This makes sense for a number of reasons. Most importantly, past agency leadership and the union have historically agreed to structure our compensation benefits with reference to our annual budgets from Congress while setting the terms and conditions of our employment in the CBA with reference to how we could best accomplish the goals of the agency. Compensation Agreements are subject to the possibility of being reopened annually based upon the Congressional budget process. The CBA is not. Separately negotiating these agreements has always reflected a shared perspective that neither party would seek to extract concessions from the other by playing off the terms and conditions of SEC employees’ employment against their pay and benefits. Both sides have long deemed this a fair process. Chair Gensler now appears to be intent upon upending this historical norm by forcing the union to agree to combine almost all aspects our pay and benefits into one contract, the CBA.
This may seem like “inside baseball,” but it is not. The union cannot overstate how important this fight is and what it says about the kind of future Mr. Gensler apparently wishes to impose on the SEC’s dedicated employees. For some perspective, in 2018, SEC leadership during the Trump administration initially pursued the same advantage, largely to attack the idea of career federal service by reducing pay raises to a level far below the historic standard. Then SEC Chair Jay Clayton, however, ultimately came to understand that separately negotiating the CBA and Compensation Agreement, as we had since the union was formed in 2000, better served the interests of the agency.
Since Chair Gensler was appointed to head the SEC, it has sadly become increasingly clear that SEC management wants to finish the job that they started in the previous administration. Before this latest salvo over “ground rules,” Mr. Gensler’s management team first notified the union that it was “terminating” the entire CBA for the first time in the history of the agency—a move commonly pursued in contract negotiations during the Trump administration, because it would mean that many provisions of the contract (those deemed “permissive”) would be unenforceable during the pendency of our negotiations. Management also sought to terminate more than sixty separate “midterm” contracts with the union, on a wide variety of subjects including paid parental leave, supplemental retirement benefits, domestic partner benefits, office selection policies, and many others. Management backed off of these aggressive proposals after being challenged by the union. The trend, however, is clear.
Why is Mr. Gensler now triggering litigation with his own employees in an attempt to compel the combination of CBA and Compensation bargaining? Put simply, he knows that expectations concerning telework and other aspects of SEC employees' work-life programs have shifted during the pandemic. He also knows that employees expect the SEC to revert to its historical pay and benefits structure after the prior administration’s attempt to shift pay downward and allow its erosion by inflation. He also understands that, given the pandemic’s relentlessness, many employees are focused on health and safety matters. Presumably, Mr. Gensler and his team believe that forcing the employees' representatives to bargain over all items at the same time, in the same process, will strengthen his ability to block positive changes in the areas of work-life balance and compensation by pitting some enhancements and improvements against others.
NTEU Chapter 293 President Greg Gilman, who has led both CBA and Compensation negotiations for SEC employees since 2006, said today that, “this is the most aggressively anti-employee strategy I have seen in the years I have been bargaining with SEC management.” Gilman went on to say, “Chair Gensler is attempting to structure negotiations in this manner in pursuit of a short-sighted and self-defeating human capital strategy that seeks to hold some employee rights and benefits hostage to others. I know that I speak for the vast majority of our workforce when I say how disappointed we are that, after weathering the prior administration’s withering attacks on our working conditions and compensation, we are now in litigation to defend a bargaining process that has been fair to both sides for 20 years.”
Due to SEC Leadership’s insistence on upending the method by which we have negotiated the CBA and the Compensation Agreement since 2000, the union and management will now engage in a litigation process commencing with mediation at FMCS, which may ultimately need to be resolved by the FSIP. Please be assured that the union will do its utmost in these proceedings to preserve the fundamental fairness of the negotiations that will determine both the terms and conditions of SEC employees' employment and pay and benefits. Regardless of whether the union is forced to the table on all of these issues at the same time, the union will not be bullied in this fashion at the bargaining table over pay, benefits, telework and other issues. We will seek redress at the FSIP if necessary. In addition, the union will strive to ensure that the CBA and the Compensation Agreement we ultimately arrive at will adequately reflect, validate and honor the tremendous efforts SEC employees have made to advance the SEC’s crucial mission, particularly during the pandemic over the past two years.