Union pleased with wins in 2002 FAIR Act disputes
The American Federation of Government Employees has met with unprecedented success this year at challenging agency decisions to open certain jobs to private sector competition, a policy analyst with the union said last week.
On July 17, the Commerce Department sided with AFGE in a dispute involving the 1998 Federal Activities Inventory Reform Act, marking the third time an agency has done so this year, said Brendan Danaher, a policy analyst involved in the case.
The FAIR Act requires agencies to complete annual inventories of jobs that could be performed by the private sector. Government workers, unions, contractors and other interested parties can challenge job classifications, and can file appeals if they lose their initial challenges.
Commerce's decision protected 157 government seafood inspectors from potential job competitions. The Seafood Inspections Program, which is housed at the National Oceanic and Atmospheric Administration and is responsible for certifying seafood produced by U.S. companies, serves an "inherently governmental" purpose and is consequently off-limits for contractors, the department ruled.
Seafood inspectors at NOAA protect public health, safety and the economy, Commerce explained in its ruling. In the process of certifying seafood quality, the inspectors make decisions that require a "thorough knowledge of [federal] statutes, regulations, standards and National Marine Fisheries Service instructions and policies," Commerce said.
The department also noted that meat and other food inspection teams within the Agriculture Department are classified as inherently governmental.
The Commerce ruling undoes NOAA's decision to classify inspector positions as "commercial" in the third round of 2002 FAIR Act inventories. That decision prompted a challenge from AFGE on behalf of the 157 inspectors represented by the union. After NOAA rejected AFGE's complaint on June 2, the union appealed the case to Commerce.
Anecdotal evidence suggests that it is relatively rare for government employees to win FAIR Act challenges or appeals, Danaher said. But AFGE has presided in three disputes-including the one involving the seafood inspectors-over 2002 FAIR Act inventories, the union's best track record to date, he added.
In the past year, AFGE successfully removed two jobs from the Labor Department's commercial list and 22 from the Coast Guard's list, according to Danaher. The union lost disputes over a "significant number" of other Labor jobs and four Coast Guard positions, he said. AFGE filed a similar number of complaints involving 2001 FAIR Act classifications, but did not win any of them.
"There are a lot of agencies pushing too hard to privatize work that should stay in house," Danaher said. The "overwhelming number of jobs that are being inappropriately declared commercial" make it easier for federal employees to get the upper hand in FAIR Act disputes, he said.
AFGE achieved its biggest win-Commerce's decision insulating seafood inspection from privatization-with the help of a strong coalition of support from industry and lawmakers, Danaher said.
A group of 39 congressional Democrats sent letters in June to Commerce Secretary Donald Evans, asking him to protect the inspectors from potential outsourcing. Sen. Ernest Hollings, D-S.C., and Rep. Barney Frank, D-Mass., both of whom represent districts bordering the Atlantic Ocean, orchestrated the effort. The National Seafood Institute, an Arlington, Va.-based association representing seafood firms, also supported the government inspectors.
John O'Hara, president of AFGE Local 2594, an inspectors' union based in Pittsburgh, said NOAA "ran into the perfect storm," with industry and lawmakers supporting the appeal. The union was "ecstatic" about Commerce's appeals ruling, but was not surprised given the broad coalition in favor of keeping seafood inspection within the government, he said.
Agencies have begun to see FAIR Act challenges and appeals in a new light after the Sept. 11 attacks, O'Hara added. They have realized that there are too "many security risks and other factors" involved with handing over work like food inspection to the private sector, he said.
AFGE is worried that Commerce's decision to classify seafood inspectors as inherently governmental might prompt NOAA to try and categorize other jobs as commercial instead, Danaher said.
But NOAA does not have targets for the number of jobs it would like to designate as commercial, according to Matt Englehart, a Commerce Department spokesman.