WHY WE ORGANIZED
This Page contains information and uploaded documents that explain why EPA professionals decided to form a labor union after the election of Ronald Reagan as President and his appointment of an administration of people whose philosophy and published opinions were antithetical to the mission of the Agency. Indeed many of the highest officials he appointed left the Agency in disgrace before the end of Reagan’s first term.
Some of the latter text in this section is taken from the “Summary History through 1999” page, and it exemplifies the correctness of EPA professionals’ decision to organize a labor union. There are links, following, to material that gives a sense of the zeitgeist in which we operated during the early 1980’s, e.g.
The link above, representing the state of affairs at EPA Headquarters in 1981-3, is a drawing by Hugh Kaufman, whistleblower par excellence, Agency Ombudsman for citizens with complaints, and general thorn in the side of evildoers. The central figure represents Rita Lavelle, one-time Assistant Administrator for Solid Waste and Emergency Response a.k.a. SuperFund, who went to prison for corruption. In the background is a representation of EPA’s first Headquarters at Waterside Mall, which had two 12 storey towers and a connecting two storey set of offices above the commercial Waterside Mall. The whole complex was owned by a man named Bressler, who was friend of Richard Nixon’s disgraced Vice President, Spiro Angew, which explains how EPA ended up there. FYI for non-speakers of German, “Die” is pronounced “dee,” and the whole title “Die Opera Ist Kaput,” thus is loosely translated as “the whole damned thing is down the tubes.”
You may find the link to “Dietrich’s Law” on the Professional Ethics/Scientific Integrity Page especially informative about why protecting employees from oppressive and unethical managers is so important to good government.
Organizing the Union In 1981, with the advent of an Administration expected to be hostile to both labor and environmental regulation, a group of us worried EPA professional employees came together and started talking organization. Concerned toxicologists, chemists, biologists, attorneys and other environmental professionals looked in alarm at impending changes at EPA – an Administrator, Anne Gorsuch, who had never supervised more than a couple of dozen employees in a Colorado telephone company and senior officials who were on record opposing the Agency’s mission.
Many of us had backgrounds in environmental, political, and labor activism. We quickly concurred that EPA’s ability and future willingness to accomplish the mission Congress had set before it was in danger, and that EPA workers of all kinds were likely to be put on the street. We took it as our responsibility to protect EPA’s work force and mission as best we could under the circumstances. What could we do to maintain professional standards and jobs and environmental protection?
We considered forming a professional association. Such a group could promote professionalism by sponsoring seminars and encouraging publication of scientific papers, be a focal point for contacts with outside allies, and serve as a support group for workers threatened in one way or another by the new management team.
With some research we soon found what a professional association could not do. It could not compel management to recognize such a group formally as the representative of EPA professionals, nor to bargain over working conditions, nor to negotiate a grievance process. It could not force arbitration to resolve disputes, nor get official time (i.e. time off from work duties), facilities or services from EPA to do anything at all. A labor union, however, could do all of these things, and we decided to organize a union.
Some years before, EPA professionals had voted against joining a union when other EPA Headquarters workers organized American Federation of Government Employees Local 3331. Though we weren’t part of Local 3331’s bargaining unit, many of us professionals with family or other links to organized labor had joined that union anyway. Many of the professional workers who led the drive to create the professional’s union came out of Local 3331’s ranks as members or officers.
With which national union, if any, we should affiliate was an important question. We planned to be a union with both traditional and non-traditional aims. We wanted freedom to pursue goals that were outside the traditional labor union scope – professional ethics and professional development, encouraging sound science for EPA policy decisions, etc. We also would be competing with defense-related programs for federal resources, so we were strongly attracted to the National Treasury Employees Union, which did not represent Defense Department employees. But NTEU was highly centralized, and we thought our need for autonomy would clash with that union’s method of operation. Nor did we want to be the “little brother” to an already existing union at EPA Headquarters, AFGE Local 3331. After considering our options, we decided that the National Federation of Federal Employees would provide the freedom we desired and that we could live within a national union that included Defense employees. And so we went forward. In 1983, Local 2050 of the National Federation of Federal Employees was chartered as the professionals’ union at EPA Headquarters, and we began an election campaign for NFFE to be the exclusive representative for the professional bargaining unit at Headquarters.
In 1984 we petitioned for a representational election, and by a 90 percent majority Local 2050 was elected by the professional bargaining unit members to be their exclusive representative.
(Our reluctant switch to affiliation with NTEU is covered below.) It wasn’t long before the first test of our commitment to EPA’s mission came along. It involved asbestos.
See Asbestos in the Key Issues page for details and documents. Also in Inside the Fishbowl, Vol.1, Nos.1, 2 and 4 are contemporaneous reports on this subject.
The links that follow illustrate Why We Organized as we did, when we did.
This is an excerpt from 5 USC §7101 et seq., known as the Civil Service Reform Act, illustrating just one of the unique and very useful rights enjoyed by unionized Civil Service employees; these rights are the reason we chose a labor union instead of any other organization to defend EPA employees and the Agency’s mission.
p.1 Wash.Post 0093081 This new item and the one following, from September 30, 1981 show what EPA staff faced as the Gorsuch administration took power.
Wash.Post Edit. 100581 This Washington Post editorial of Oct. 5, 1981 illustrates the anxiety many, including we who organized the union, felt about the Agency’s future under Reagan/Gorsuch.
The August 7, 1981 issue of Science report on the firing of Peter Infante, an OSHA scientist, expert on formaldehyde; it typifies the kind of anxiety felt by science staff at EPA. See also on the Key Issues page Fluoride/Marcus Case, which shows our worries about such actions at EPA were well founded.
Gorsuch Statement 022382 EPW Opening of Feb. 23, 1982 testimony by Gorsuch before the Senate Environment and Public Works Committee on FY1983 budget indicating still more cuts to EPA.
Doonsbury 1981 Doonsbury cartoon Jan. 30 1982 Cartoons by Gary Trudeau of Jan. 30, 1982…one of a series he published in late 1981/early 1982 characterizing accurately staff morale at Headquarters. A staff person is perched atop the 12th Floor of West Tower, site of the Administrator’s office and those of the Office of General Counsel, while recent Reagan hires cheer him on.
Purge Files Paper W. Post Federal Page article ordering EPA Regional staff to purge files that could be FOIA’d or requested by Congress “which could be embarrassing” to the Agency. This is the time when things began unravelling big time for the Gorsuch administration.
The “Die Opera ist Kaput Kaput” cartoon by Hugh Kaufman, long time thorn in the side of environmental evil doers, summarizing the final act of the tragicomic opera that was the Gorsuch administration. Starring is Rita Lavelle, Assistant Administrator for Solid Waste and Emergency Response, who went to jail for her actions while at EPA.
Risk reply to Ruckelshaus This is a reply by NFFE 2050’s Executive Board to an article by Bill Ruckelshaus, who cleaned up after Gorsuch and was concluding his second term as Administrator. He was EPA’s first Administrator and regarded highly by virtually every EPA employee.
The following link to the first and last 2 pages of a 14 page essay in the November 1985 Harper’s by Walter Karp titled, “Liberty Under Siege – The Reagan Administration’s taste for autocracy.” The essay expounds upon administration actions from January 1981 through November 1985, the period during which EPA headquarters professionals were organizing NFFE Local 2050. It gives an idea of what the Civil Service and the whole country were facing at that time. It is a cautionary story for these times. Inside the Fishbowl of February 1986, Vol. 2 No.1, published, with permission of the author, the final paragraph of the essay. The Morison case referred to on the final page was the prosecution of a civilian under the 1917 Espionage Act for selling satellite photographs of a Russian aircraft carrier under construction to the magazine Jane’s Fighting Ships. Harper’s Karp Essay
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The text below is adapted from a previous website of the union after it had become NTEU Chapter 280. The topics briefly summarized there – asbestos, fluoride, toxic carpet, flammable aerosols, collective bargaining – are dealt with in much greater detail and with documentation on the Key Issues Page via SubPages for each Issue.
Of special interest in the current climate, is the section below titled EPA Attempts to Bust the Union.
Please note that the material and opinions on this site are a reflection of attitudes and policies within the union at the time when Drs. Carton and Hirzy were in leadership positions. This site does not necessarily reflect the opinions and policies of the current union leadership and membership.
No other document on the website is better, is as few words, at explaining why the union was formed by headquarters professional employees than this letter about an EPA retreat on asbestos rules, signed by 128 employees, including managers, of the Office of Toxic Substances : Employees Open Letter to Administrator Thomas
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Introduction What follows is a summary chronological narrative of the development and accomplishments of our union through 2008. The final section of the narrative is titled “Our Philosophy of Civil Service. That section explains how the various non-traditional actions of this labor union, which are depicted in earlier sections, fit together in a coherent pattern consistent with that philosophy. The reader should understand, however, that the union did not have a “Philosophy of Civil Service” document at its inception, all neatly thought out and rationalized, ready to use as our fundamental guide to action. Rather, the philosophy developed and evolved in the heat of the battles recounted here.
Founders’ Vision and Beliefs What we did have as our early guide was a vision and a belief. We believed that to be able to perform our work in support of EPA’s mission in an open, ethical and public-spirited environment was a basic working conditions issue for which we would take risks and fight. We had a vision of EPA workers coming together in a democratic organization and interacting with management, Congress and the public in ways that enhanced EPA workers’ job satisfaction and the Agency’s ability to accomplish its mission.
The National Treasury Employees Union uses as an organizing concept the idea that all Federal employees should be treated with dignity and respect. In retrospect, this organizing concept summarizes our early vision and belief very well.
Organizing the Union In 1981, with the advent of an Administration expected to be hostile to both labor and environmental regulation, a group of us worried EPA professional employees came together and started talking organization. Concerned toxicologists, chemists, biologists, attorneys and other environmental professionals looked in alarm at impending changes at EPA – an Administrator, Anne Gorsuch, who had never supervised more than a couple of dozen employees in a Colorado telephone company and senior officials who were on record opposing the Agency’s mission.
Many of us had backgrounds in environmental, political, and labor activism. We quickly concurred that EPA’s ability and future willingness to accomplish the mission Congress had set before it was in danger, and that EPA workers of all kinds were likely to be put on the street. We took it as our responsibility to protect EPA’s work force and mission as best we could under the circumstances. What could we do to maintain professional standards and jobs and environmental protection?
We considered forming a professional association. Such a group could promote professionalism by sponsoring seminars and encouraging publication of scientific papers, be a focal point for contacts with outside allies, and serve as a support group for workers threatened in one way or another by the new management team.
Why a Union With some research we soon found what a professional association could not do. It could not compel management to recognize such a group formally as the representative of EPA professionals, nor to bargain over working conditions, nor to negotiate a grievance process. It could not force arbitration to resolve disputes, nor get official time (i.e. time off from work duties), facilities or services from EPA to do anything at all. A labor union, however, could do all these things, and we decided to organize a union.
Some years before, EPA professionals had voted against joining a union when other EPA Headquarters workers organized American Federation of Government Employees Local 3331. Though we weren’t part of Local 3331’s bargaining unit, many of us professionals with family or other links to organized labor had joined that union anyway. Many of the professional workers who led the drive to create the professional’s union came out of Local 3331’s ranks as members or officers.
Why NFFE With which national union, if any, we should affiliate was an important question. We planned to be a union with both traditional and non-traditional aims. We wanted freedom to pursue goals that were outside the traditional labor union scope – professional ethics and professional development, encouraging sound science for EPA policy decisions, etc. We also would be competing with defense-related programs for federal resources, so we were strongly attracted to the National Treasury Employees Union, which did not represent Defense Department employees. But NTEU was highly centralized, and we thought our need for autonomy would clash with that union’s method of operation. Nor did we want to be the “little brother” to an already existing union at EPA Headquarters, AFGE Local 3331. After considering our options, we decided that the National Federation of Federal Employees would provide the freedom we desired and that we could live within a national union that included Defense employees.
In 1983, Local 2050 of the National Federation of Federal Employees was chartered as the professionals’ union at EPA Headquarters. NFFE Local 2050 Charter
In 1984 we petitioned for a representational election, and by a 90 percent majority Local 2050 was elected by the professional bargaining unit members to be their exclusive representative.
(Our switch to affiliation with NTEU is covered below.) It wasn’t long before the first test of our commitment to EPA’s mission came along. It involved asbestos.
The Asbestos Regulations Battle By mid-1984, EPA’s decade-long effort to regulate asbestos risks had culminated in a draft Rule under section 6 of the Toxic Substances Control Act (TSCA). The Rule, that would ban several big uses of asbestos and require a phase-down of asbestos mining and imports, cleared all levels of EPA review, including review by the General Counsel who opined that TSCA section 6 was the appropriate authority for controlling asbestos risks and that section 9 of TSCA, which might have required EPA to let the Consumer Product Safety Commission (CPSC) and the Occupational Safety and Health Administration (OSHA) handle the job, did not apply in this case.
EPA Abandons the Rules The asbestos Ban/Phasedown Rule went to the Office of Management and Budget for clearance in the late summer of 1984, and disappeared into a Black Hole. It re-emerged in February 1985 at a press conference called by EPA’s new Acting Administrator, Jim Barnes (Bill Ruckelshaus having presciently resigned just days before) and the General Counsel, Gerald Yamada. These officials told an incredulous audience that included a Local 2050 Vice-President, that EPA had suddenly discovered that TSCA section 9, after all, did require EPA to withdraw its proposed Ban/Phasedown Rule and instead let OSHA and CPSC try to control asbestos risks.
The Branch Chief whose organization had written the Ban/Phasedown Rule and invested years of work that included consultation with OSHA and CPSC over which agency’s authority could best control asbestos risks, was outraged by the announcement. He demanded to know what the union was going to do about it.
Union Takes Action The union wrote the Open Letter to Administrator Lee Thomas appearing above and circulated it through the Office of Toxic Substances. Many managers as well as professional employees signed it, and after 128 signatures had been attached it was delivered and released to the media. More signatures could easily have been gathered, but time was of the essence, and we stopped at 128.
Congress Takes Action That evening we contacted Bob Eckhardt, Congressional “father” of TSCA and RCRA, and two days later a letter was on the Administrator’s desk stopping the section 9 referral to OSHA and CPSC and starting an investigation. Congress found that OMB had secretly met with asbestos industry people and had agreed to their demand that EPA’s Ban/Phasedown Rule be killed. EPA was then ordered by the Administration, through OMB, to fabricate the story about TSCA section 9 taking precedence and requiring OSHA and CPSC, rather than EPA, to deal with asbestos.
The union has in its files copies of the several hundred pages of testimony taken at the hearings, far too much to post on this site.
Results After issuing a severe public criticism of OMB’s and EPA’s actions, Congress demanded and got a Memorandum of Understanding (MOU) between EPA and OMB that specified that there would be no future secret meetings between OMB and parties with an interest in proposed EPA Rules and that EPA would be invited to all meetings between OMB and interested parties. The MOU was published in the Federal Register. Local 2050 was justifiably proud of its part in this saga.
EPA: A Shop with Two Ethical Cultures; Lawyers’ and Scientists’ After the dust settled the Deputy Administrator met with OTS employees to discuss what had happened. He was asked about the ethics of the General Counsel’s denial that OMB was involved, “What was a lawyer’s ethical duty in this case.” His reply was that the General Counsel’s duty was to get his client where he wanted to go with violating the law, and that in this case his client was the President of the United States.
How Does EPA Really Work? To really understand how EPA works, one must understand these two cultures. The Lawyer Culture at EPA controls policy, and if the law permits and the President or his delegated EPA officials so decide, science can be pushed aside, using whatever linguistic machinations may be necessary, as in the asbestos case.
Scientists have no clients. The Science Culture is one in which scientists ask Mother Nature questions about how She works, then publishes what they understand Her answers to be and what they mean. Other scientists test these publications to assess their validity, and we progress toward true understanding of Nature.
At EPA the Science Culture advises policy makers on what the science is on any issue. The Lawyer Culture, theoretically, cannot dictate what the science is on any issue. That is the fundamental tension at EPA, and that is the fundamental reason why we organized a labor union – to protect scientists’ rights to make the science calls, while the Lawyer Culture makes the policy calls. …………………………………………..
Next issue: Fluoride The union’s involvement with fluoride began with a 1985 ethics/scientific integrity issue that dealt with EPA’s new drinking water standards for fluoride. Fluoride became a major scientific integrity concern of the union lasting well into the 21st Century, dealing with several adverse health effects and the public’s interest in our activities.
Inside the Fishbowl Newsletter Coverage See Vol. 1, No.4 of Inside the Fishbowl on the Newsletters Page for the first news communicated to EPA professionals by the union on this subject. Inside the Fishbowl continued to report on union activities on this subject over the years.
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Toxic Carpet and Indoor Air Quality In July 1987, after putting up with years of poor indoor air quality in EPA work spaces, the union negotiated a landmark Clean Air Agreement with EPA. Within months of the agreement’s signing, hundreds of EPA employees were made sick by new carpet installed in Headquarters buildings. For a long time EPA denied that these employees actually suffered from physical injuries. As the union made its fight over toxic carpet a matter of public record through various national and international media and the Congress, it received hundreds of phone calls and letters from citizens reporting similar incidents in their homes, work places and children’s schools.
Given the number of incidents reported to it and EPA’s reluctance to address the issue with any semblance of scientific integrity, the union filed a petition under the Toxic Substances Control Act. Instead of granting the requested relief EPA created a Carpet Policy Dialogue, which turned out to be a charade that benefited the carpet industry.
Much more detail is on the Toxic Carpet Page and Subpages and on NFFE/NTEU Newsletters Page in newsletters covering late 1987 through 1994.
The Director of EPA’s Health and Safety Division, David Weitzman, admitted in a September 1989 Washington Times article that “The freshly manufactured carpet clearly caused the initial illness.” That was something the union had pointed out and had begun to take action on as soon as employees started getting sick, almost two years prior to Weitzman’s admission. During those two years of struggle, EPA continued to pretend that it couldn’t say for sure what had caused the problems, admitting to the union President, however, that the reason for playing dumb was to “avoid getting involved in lawsuits.” EPA also downplayed the occurrence of MCS among its employees, claiming that these employees only thought they were getting sick from carpet emissions. During that two year period, as the union made its fight over toxic carpet a matter of public record through various national and international media and the Congress, it received hundreds of phone calls and letters from citizens reporting similar incidents in their homes, work places and children’s schools. Many of these included heart-rending reports of induction of MCS, mimicking EPA employees’ experience.
Within six months of the first employee illnesses, union scientists had developed an investigative and risk control strategy to deal with bad quality carpet and tried to get EPA to use it, but with no perceptible success. EPA fobbed off the major part of the task to CPSC, which in turn developed its own “investigative” process. The union President happened to be the Senior Scientist in the EPA Branch that was working with CPSC on the project. When he found that only $5000 had been allotted by the U.S. Government to conduct a nationwide investigation of citizens’ reports of carpet toxicity, and that EPA refused to use data it had collected on sick employees and emissions from the carpet out of fear of involevement in lawsuits, he wrote a memo to his boss decrying those ethical failures. It was apparent that EPA and CPSC were far more interested in causing no inconvenience to the carpet industry than in protecting the public from harm caused by bad product.
So the union took unique action – in January 1990 it filed a citizens’ petition under TSCA section 21 asking EPA to take specific regulatory actions to protect the public from the kind of injuries its own employees had suffered in their EPA offices. Here was a group of EPA scientists, whose jobs included assessing hazards, exposures and risks from toxic chemicals, writing a detailed justification and plan for EPA action to control risks from carpet emissions and compelling a response.
EPA declined to take on the carpet industry (and also the then-extant White House Council On Competitiveness) by granting any of the relief sought in the union’s petition. An EPA official came to the union President’s office in April 1990 and told him that if it were to grant the relief, “It could cost the carpet industry billions of dollars.” The reason for that being that if EPA were to make the finding of “unreasonable risk” that was necessary for EPA to take action, tort claims against carpet manufacturers would quickly flood the court system.
So, instead of making the “unreasonable risk” finding and granting the relief, EPA proposed creating a “Carpet Policy Dialogue,” which was to be charged with investigating carpet emissions and ways of controlling them. EPA invited the union to sit as a member of the Dialogue panel with about 25 other entities that included the Carpet and Rug Institute (CRI), chemical companies, other Federal agencies, and independent experts. The Dialogue, begun in August 1990, proved in the end to be just another smoke screen for the carpet industry, and EPA abandoned the charge to the Dialogue to look for ways to control emissions. The carpet industry morphed the Dialogue into a marketing gimmick by mid 1992, eventually developing out of it what the industry called its “Green Tag” program.
The “Green Tag” program required carpet manufacturers to test one square foot of a carpet type per year for total emissions. If that single, one square foot sample passed the test, the entire year’s run of that carpet type was entitled to a “Green Tag”, which CRI said would, “tell consumers that the carpet or rug they buy meets the predetermined indoor air quality testing criteria.” Anyone with a modicum of experience in quality control could see that testing a one square foot sample, once a year, could not possibly be an adequate method of assuring product quality, as claimed by CRI. The union filed a complaint with the Federal Trade Commission in September 1992 over that CRI program, and in Congress there were subsequent demands that CRI abandon this advertising campaign.
In a September 1996 Louisiana tort action, the judge awarded $4.2 million to a consumer injured by carpet emissions who relied on television advertisements, that the Court found, “. . .do lead the viewer to believe. . .” that the carpet is warranted as safe.
As injuries to employees became evident, the union engaged management and the Department of Labor in several ways. We got a briefing on Workmen’s Compensation processes for Headquarters employees and sought assistance from OSHA (who found, not surprisingly, that no existing indoor air quality standards were being violated at EPA). We got management to stop installing any more of the toxic carpet, and eventually to sign an agreement not to use any carpet containing styrene-butadiene (SB) latex at Headquarters and to remove all such carpet that had been installed. We won the right for employees to vote on what kind of new floor coverings they wanted in their work space and we conducted elections in many work units on this question. We got the four part health and environmental quality study run and results published. We fought back management’s contentions that employees were not physically sick from carpet emissions, and we testified several times before Congress on the carpet problem and on indoor air quality in general, supporting an Administration plea for $8 million to improve air quality here.
The union worked with several law firms who were candidates to help injured employees seek redress that was slow or not forthcoming through other avenues. When EPA employees acquired MCS from the air quality at EPA, the union pushed management into allowing them to work at alternative locations, including their homes, as a last resort. A collective bargaining agreement was reached on the subject, and is now in effect.
Flammable Aerosol Propellents Flammable Aerosol Propellents In 1978 EPA banned the use of chlorofluorocarbon (CFCs) propellents for use in aerosol pesticides. Similar bans were also placed upon other consumer product aerosols by CPSC and FDA. Nonflammable CFCs were soon replaced by aerosol propellants containing extremely flammable hydrocarbons such as propane and butane. At that time a scientist in the pesticide Registration Division discovered a loophole in pesticide regulations that allowed these flammable/explosive products to be sold without any warnings. Initial memos from the scientist outlining this lapse in protection of the public were ignored by management. As his memos escalated, management opined that although there was “potential,” no explosions or fires were actually occurring. The scientist then produced hundreds of news-clippings and reports of fires/explosions from CPSC, but management still insisted the problem was not pervasive enough to warrant a flammability warning.
The scientist contacted our union and the New York City Fire Department, which had documented a large number of fires from insecticide foggers. In 1987, nearly 10 years after the discovery of the loophole, a notice was prepared requiring warnings on all propane/butane containing pesticide products. The notice was withdrawn by EPA that same year, with the understanding that industry would work with EPA to develop appropriate language. Meanwhile, with the intent of firing the whistle-blowing scientist for non-performance, management reassigned him to a different job in a discipline in which he had no training. His requests for training were all refused, including free training at USDA, based upon a phony excuse of no training funds. After two years of grievances and a whistle-blower case with the Office of Special Council, the scientist settled with the Agency, and in the meantime had become a full time officer with the Union. Twenty one years after its discovery by this scientist, the loophole was finally closed, but only in regard to total release insecticide foggers.
Asbestos in Our Workplace Ceiling tiles in the Crystal Mall II Building were found in 1990 to contain asbestos, and so were targeted for removal. But the technology used for the removal was untried, and failed, severely contaminating the Office of Pesticide Programs work spaces in that building. Measurements showed contamination so high that had it occurred in a school, the school would have been closed. Union leaders appeared on local television to publicize the problem, and a rally attended by 500 EPA, Navy and Patent Office employees who worked in the building resulted in a petition being signed by hundreds of employees and managers demanding a proper clean-up. Throughout, EPA management contended that the clean-up was “safe”. The union engaged Congressman James Moran’s help in pressuring EPA to take effective action. Eventually the responsible Assistant Administrator, Charles Grizzle resigned (see below), the Health and Safety Division hired an industrial hygienist experienced in coal mine air quality safety issues, and EPA cleaned up the mess.
From NFFE through EECO to NTEU Local 2050 and its leaders made many friends among NFFE’s National leadership and staff. Charlie Bernhardt, on the legal staff at NFFE did outstanding work for the Local on several crucial negotiation appeals (on security issues and official time). President (the late) Jim Peirce was a staunch supporter during our indoor air crisis and our fight for sufficient official time to carry out representational duties. Secretary-Treasurer and later Historian, Abe Orlofsky was always ready with helpful guidance and needed information. General Counsel Steve Gordon kept us out of hot water on more than one occasion. NFFE National, true to its word, gave us great latitude and support as we broke new ground as a federal labor union for professional scientists, engineers, and lawyers.
But then Jim Peirce retired after fourteen years as President, and fierce in-fighting among would-be successors broke out. Every NFFE National President elected from 1990 on was subjected to internecine warfare that included election challenges before the Labor Department, and/or charges brought before the National Executive Council. Financial crises multiplied and the National Federation of Federal Employees began to eat itself alive. The National’s leadership also began to interfere in the operation of the Local.
By 1994, we had had enough and attempted to leave NFFE to form an independent, environment-oriented union, Environmental Employees Collectively Organized (EECO). But before we could carry out the necessary procedures in September 1994, NFFE put the Local into trusteeship. The elected officers were removed and replaced by an employee appointed by NFFE. That arrangement proved unsatisfactory to the EPA employee population, and eventually to NFFE itself, as the budget crisis of 1995 appeared on the horizon. NFFE National then restored the removed officers to office while maintaining the trusteeship, which ended in the Spring of 1996, as the budget scare came to an end.
Our action in attempting to secede from NFFE set legal precedent with the Federal Labor Relations Authority which has been useful in subsequent affiliation change actions, including our own and other EPA NFFE Locals’ switch to NTEU (see below).
In the NFFE convention of September 1996, Jim Cunningham was elected National President along with a “reform” slate of (almost all) new National Vice-Presidents pledged to end the downward spiral of NFFE’s fortunes and leadership. Jim promised that if he couldn’t get the union straightened out and stop the internal hemorrhaging he would not stand in the way of any Local that wanted out. The pledge taken by the new NFFE National Vice-Presidents to stop in-fighting lasted less than two months. When it resumed, we started looking once more to get out.
We were wooed by several other major national unions, but NTEU’s stability and reputation as a law firm masquerading as a labor union won our hearts and minds. In February 1998, using lessons learned from our earlier experience, we voted to change affiliation from NFFE to NTEU. In April that year the Federal Labor Relations Authority granted our petition to become NTEU Chapter 280. Simultaneously, NFFE Locals in Region 4 and Cincinnati switched to NTEU, becoming NTEU Chapters 281 and 279, respectively.
Public Recognition. The union and its officers have received attention in local, national and international print and broadcast media for activities benefitting its members and the public. Our work on flammable pesticide aerosols, asbestos, indoor air quality, toxic carpet, and fluoride risks has been recognized by the media, professional societies, public interest organizations and government officials.
Our Philosophy of Civil Service
When the Asbestos Ban/Phasedown Rule fight ended, Deputy Administrator Jim Barnes met with employees who had worked on the Rule to explain what had happened between EPA and OMB. OMB had ordered EPA to withdraw the TSCA section 6 Rule and, under section 9, give OSHA and CPSC the job of controlling asbestos risks, even though EPA staff and senior management, and representatives of OSHA and CPSC had all concurred that only EPA’s statutory authority could adequately control those risks. Barnes was asked what a lawyer’s ethical duty is in cases like that. His answer helped the union develop is philosophy of civil service, especially regarding civil service scientists.
He said that it is a lawyer’s duty to get his client where the client wants to go without violating the law, and in this case the client was the President of the United States, acting through OMB. It is arguable whether such an order from the President through OMB violated the law, but in any event, Barnes did as he was ordered (then personally took the heat when he obfuscated about it at the press conference).
Scientists have no clients. They ask Mother Nature questions and try to make sense of the answers she gives. They publish the results so that other scientists can check to see if their questions made sense and if their interpretation of Mother Nature’s answers are reasonable. By this process, known as the Scientific Method, humankind gains better and better understanding of how nature works. The scientist’s ethical mandate is to tell the truth as clearly as it is known. In theory, governments use the understanding gained by civil service scientists using this process to benefit the governed.
Since EPA is a science-based regulatory agency, we have two cultures to deal with in our work place – the lawyers’ and the scientists’, each with a unique ethical mandate. The union has striven to make it possible for both cultures to comply with their ethical mandates. It was a lawyer Branch Chief who had worked years on the Asbestos Rule who stormed into the union office after the press conference demanding that the union take action. His sense of ethics was outraged, just as was the scientist’s who came to us complaining about EPA’s defining severe dental fluorosis as merely a cosmetic effect.
That definition was without doubt the lawyer culture’s contribution to getting EPA where it wanted to go without violating the Safe Drinking Water Act. But the definition offended the science culture by being ridiculous on its face – even the National Academy of Sciences, which for years has been a “good soldier” in the government’s propaganda campaign to de-toxify fluoride, has said that dental fluorosis severe enough to affect food choices is clearly an adverse health effect.
(In 2006 the National Academy published a Report on Fluoride in Drinking Water tat was written by the National Research Council’s Committee on Fluoride in Drinking Water. The report was solicited by EPA in 2003, and it found that severe dental fluorosis is, indeed, “an adverse effect on health.” So, while NFFE Local 2050, the Natural Resources Defense Council, and others told the U.S. District Court in 1986 that severe dental fluorosis was an adverse health effect, the lawyer culture actually helped EPA to violate the Safe Drinking Water Act. And as of April 2017 EPA is still in violation, maintaining a health-based standard, the Maximum Contaminant Level Goal, of 4 mg/L for fluoride.)
As the union engaged EPA management on the issues of asbestos, toxic carpet and indoor air, fluoride, flammable pesticide aerosols, etc. some people, especially some EPA managers, charged that we were just disgruntled over the policy choices made by EPA management or other government entities, that we were trying to set environmental policy ourselves, and that we should keep our nose out of their business. Thus arose their attempts to break us. That criticism must be, and has been, addressed, in a publication by one of our former Presidents, Bill Hirzy, in Environmental Law ReporterXX 10057-10060 (Feb. 1990). Our answer is given again here, and it is simple.
We recognize that our form of government gives Congress and the President, respectively, the right and duty to make and faithfully execute laws, and it gives the courts the duty and right to interpret those laws. As professional civil service staff, our role is to advise the constitutionally mandated Branches in matters of our professional competence. Those Branches can take our advice or not, as they choose. This is the essence of the oath we take upon entering the Civil Service to: support and defend the Constitution against all enemies, foreign and domestic.
Most directly, our advice goes to EPA management, the Executive Branch officials who supervise our work. Our advice can also be delivered to Congress and the courts, as we have reported above having done. But our duty and rights as citizens and as civil servants do not end there.
Those words of our oath are identical to those found in the oath some of us took upon entering the military service. The military oath has additional language not found in the Civil Service oath, to the effect that one swears to obey the orders of the President of the United States and of officers appointed above the oath-taker. The difference is significant. Members of the Civil Service serving in the Executive Branch are not oath-bound to obey the orders of the President or the orders of managers above them. Thus whistleblowing or resisting orders that conflict with the clear language of laws passed by and/or adjudicated upon by the Congress and/or the Judiciary is, in our view, a duty. The oath we take requires such.
We have a duty and a right to perform our work in an ethical environment, and to see that our work is not distorted, misrepresented, stolen or lied about in devising false cover for Agency policies that violate statutory law. We believe that in order for our constitutional form of government to function we must take and defend this position on ethics, and assure that our advice is also accessible by those who pay our salaries and who are the ultimate defenders of our form of government, the American people. The people must be able to access the information necessary to decide whether the government is acting as their servant or their master. The people must be able to learn whether government decisions are being made for their benefit or the benefit of other interests. Taking action to protect the ethical environment of our work place and to see that the people can make these informed judgments is the center piece of our philosophy of civil service.
So when EPA gets secret orders from OMB to kill rules to protect the public from asbestos risks and then lies about it at a press conference – we take action.
And when EPA holds data on carpet emissions that cause its own employees to get sick and then lies about it for the hidden reason that government cares more about protecting an industry than about protecting the public – we take action.
And when EPA maintains that propane isn’t flammable, leading to property damage and injuries and erroneous arrests on arson charges of un-warned people who use aerosol bombs (literally) in their homes – we take action.
And when EPA proclaims that children’s teeth that are brown, cracked, chipped, and pitted are only cosmetic defects, and that the only adverse health effect from fluoride overdosing is skeletal fluorosis (or death from swallowing a big dose), and that telling the truth about the carcinogenicity of fluoride is an offense for which an EPA scientist should lose his job, and it does all this to continue the fiction that toxic sludge in drinking water is good for you – we take action.
We recognize that our duty to “support and defend the Constitution of the United States against all enemies, foreign and domestic” extends to not acquiescing in having our work used for cover in such ethical catastrophes as these. In confronting our consciences, we chose not to rely on the defense that failed at Nuremberg.
It is for these ideals that we organized and for which we have fought and for which we will continue to fight. (Written in the late 20th Century, and Drs. Carton and Hirzy hope this sentiment lives on in the second decade of the 21st)