A Union Has Filed a Complaint Against a Defense Agency Over Failure to Implement Biden's Voting Leave Policy

A union representing U.S. Army Corps of Engineers employees in the Midwest on Monday filed an unfair labor practice charge against the agency over its alleged failure to implement the Biden administration’s directive to provide extra time off for employees to vote or work at the polls.

In March 2021, President Biden signed an executive order telling agencies that they should provide employees up to four hours of administrative leave to vote in any federal, state, local or tribal election and an additional four hours to serve at the polls as a volunteer, and the Office of Personnel Management published guidance for implementation a year later. But Government Executive reported last week that in practice, several agencies have either ignored the directive or have placed tight restrictions on the policy.

Colin Smalley, president and secretary-treasurer of the International Federation of Professional and Technical Engineers Local 777, which represents U.S. Army Corps of Engineers employees in the Chicago region, said he asked local management multiple times to bargain over the implementation of the executive order and subsequent OPM guidance, only to be told that management’s hands were tied by an April Defense Department memo that said that the Pentagon is working on the issue, and instructing component agencies to continue abiding by the previous, more restrictive, voting leave policy, which dates back to 2015.

“So we first got this set of memos back in May, before the [Illinois] primary, and at the time we reached out and said, ‘Are you going to adopt the changes in OPM’s guidance?’” Smalley said. “Our management—it must have fallen through the cracks because we didn’t get a response. I wasn’t as worried then because the [Defense Department] memos said that they were working on it and will implement this, but when we got to the actual midterm, they sent the same memos back to us.”

The union then submitted a demand to bargain, but it was denied. Local management, with whom Smalley said he ordinarily has a strong relationship, said they could not bargain over expanded voting leave because the Department of the Army and the Defense Department instructed agencies to abide by the old policy.

“ ‘Since our higher headquarters haven’t updated their [policy], we aren’t going to either, so for now we’ll keep using the old guidance,’” Smalley recounted management saying. “We pushed back and said, ‘Hey, we want to bargain this, because it appears that you guys made a choice not to implement this in time for the election, despite the fact that this is clearly the intent of the administration.’ . . . They weren’t willing to go for that, saying, ‘This guidance prohibits us from doing that.’”

Smalley said he filed an unfair labor practice complaint because the department’s inaction fit a “pattern” where management would be willing to implement some elements of President Biden’s labor agenda, including getting rid of Trump-era policies like cancelling labor-management forums and evicting unions from federal office spaces or charging them rent, but would delay implementation of other pro-worker policies under the guise of “studying” the issue. Similar tactics have been reported by union officials at the Social Security Administration.

“The reason we’re filing the unfair labor practice complaint now is that back in May, we were kind of extending them some grace to assume they’d get this done before the midterm,” he said. “The fact that they didn’t made it more clear to us that no, this is following a pattern. There are other things DoD and the Army aren’t implementing that we think this is part of a pattern, that things that are good for workers are being ignored. I think we can all remember under Trump, when they took away our offices and stopped partnership meetings and things like that, those things got implemented pretty quickly.”

“It’s a slow walk,” Smalley elaborated. “And don’t get me wrong, both sides do it. There were things that were slow walked at the end of the Trump administration that we supported being slow walked, so I’m not trying to say there aren’t both sides to this. But we’re trying to call attention to the fact that the Biden administration may think that by issuing the guidance, the workers are getting these things, but no, a lot of us aren’t.”

Smalley said nearly two years after Biden issued an executive order, among other things, establishing that agencies are required to negotiate with unions over so-called permissive bargaining subjects, the Pentagon still has not changed course.

“DoD still hasn’t issued guidance on that, and when we’ve asked to bargain over these things, we’ve been told, ‘No, these are management rights,’” he said. “Well the executive order says you have to, we tell them. ‘Well, we haven’t gotten guidance from the Army or DoD.’ They’re hiding behind this slow walk at the highest levels of these agencies.”

The Defense Department did not respond to a request for comment Tuesday.

Smalley said that there’s a certain irony to his agency’s employees being unable to secure expanded leave to vote or work at the polls. Chicago cut the number of polling stations by 10% this year, in part due to a lack of volunteers, which could cause residents to wait longer in line to vote. Had his agency implemented the new policy, some U.S. Army Corps of Engineers workers could have become election judges, reducing the impact of falling numbers of volunteers.

“The EO would have helped with poll workers here, but instead they would have taken their own leave to do that, so we weren’t able to be part of that solution,” he said. “On a meeting this morning, a guy said he teleworked today because it took him an hour to vote and he missed his train downtown. It’s one of those things where we always hope that voting is a quick and easy process, but we have people who live in communities where there are known issues with polling places and major delays.”