Will Broadcasting Board of Governors contract journalists petition the White House about exploitation?
March 26, 2015
35 minute read
BBG Watch Commentary
“Great to see @Microsoft doing the right thing by extending paid leave benefits to contractors,” a White House tweet posted this morning (11:51 AM – 26 Mar 2015) says.
Not surprisingly, U.S. taxpayer-funded Voice of America (VOA), whose executives working in conjunction with the Broadcasting Board of Governors’ (BBG) International Broadcasting Bureau (IBB) executives have for many years illegally employed as full-time contractors and shamelessly exploited hundreds of contract-journalists, is not reporting on this major U.S. labor relations story.
VOA, IBB, and BBG executives not only illegally hired hundreds of contractors to work on Voice of America programs at low pay, but they are also denying them job benefits, not to mention job protections.
The November 22, 2014 Washington Post “Federal Eye” column by Joe Davidson, “Agency that few Americans use draws controversy,” reported on widespread abuse of federal regulations at the Broadcasting Board of Governors as uncovered by the U.S. Department of State and the Broadcasting Board of Governors Office of the Inspector General (OIG).
In June, the inspector general found that BBG “allowed contractors to work without having valid contracts or secured funding in place,” exceeded “its statutory authority to award personal service contracts” and “had not complied with Federal regulations related to procurement.” An IRS audit found that certain contractors should have been treated “as employees for tax reporting purposes, including by withholding income and Social Security taxes,” according to an internal BBG document. READ MORE
The Washington Post article revealed that in November 2014, more than 150 contractors sent a letter to Broadcasting Board of Governors chairman Jeffrey Shell, with copies to 31 members of Congress, urging reforms of the contracting system and additional funding. The article also revealed that BBG, IBB and VOA executives had decided to hire outside firms that would employ the contractors, but the contractors fear that in practice the BBG plan could lead to lower pay or fewer workers.
The BBG’s contract employees still lack basic job benefits and protections.
If Voice of America journalists decide to report on the Microsoft – White House story, we would be interested to see if they will report on the exploitation by BBG, IBB, and VOA management of contract employees working for the Broadcasting Board of Governors, mostly at the Voice of America and at the Office of Cuba Broadcasting (OCB), which runs Radio and TV Marti.
We will see how good journalism is at the Voice of America. The story is in the VOA building in Washington, DC. Will any VOA journalist report on it?
Just in case, we are providing much of the background material VOA journalists may need to report on this news story within their own news organization. This material also includes information on illegal treatment of full-time federal employees of the Broadcasting Board of Governors. In one case, thanks in the first place to actions by the AFGE Local 1812 employee union, court rulings against the agency, and finally thanks to the intervention of BBG chairman Jeff Shell and the new BBG board, BBG/IBB executives and lawyers were forced to reinstate some of the illegally RIFed OCB journalists. But other abuses continue, especially with regard to contractors working for the BBG at substandard pay, without benefits and without job protections. We can only wonder whether the White House knows about. We’ll see if some brave VOA journalist will take up this story.
“Instead, the agency seems to be attempting to sweep the issue under the rug by bringing in a third party middle man to be a buffer between employer and employee, and avoiding any redress for the apparent past wrongdoing.” From a letter of Broadcasting Board of Governors (BBG) Voice of America (VOA) and Office of Cuba Broadcasting (OCB – Radio and TV Marti) media content-producing contract employees to BBG Chairman Jeff Shell and members of the U.S. Congress.
BBG Watch has reported on Joe Davidson‘s column in The Washington Post about the Voice of America contracting scandal. The Washington PostFederal Diary, a column about the federal workplace, mentioned BBG Watch reporting on VOA news and management failures.
“We have to evaluate our programming relative to the human capital (employees and contractors) we can afford each year,” she said. “We remain committed to our goal of continuing to provide high-quality content to our audiences worldwide.” — BBG Spokesperson Letitia King
The BBG was cited by the Office of the Inspector General (OIG) as non-compliant with Federal Acquisition Regulations (FAR) and in violation of the Anti-Deficiency Act (ADA).
The bipartisan bill to reform the BBG, H.R. 4490 (passed by the House of Representatives and awaiting further legislative action by the Senate), notes these problems in sec.2 (“Findings and Declarations”) and requires the CEO of USICA (a new agency proposed in the legislation) to annually submit a report on the agency’s compliance with both FAR and ADA in sec. 112(b).
“(11) According to the Office of the Inspector General, the BBG’s Office of Contracts is not in compliance with the Federal Acquisition Regulation, lacks appropriate contract oversight, and violates the Anti-Deficiency Act. The Office of the Inspector General also determined that the Broadcasting Board of Governors has not adequately performed full and open competitions or price determinations, has entered into hundreds of personal service contracts without statutory authority, and contractors regularly work without valid contracts in place.”
“15) The annual survey conducted by the ‘Partnership for Public Service’ consistently ranks the Broadcasting Board of Governors at or near the bottom of all Federal agencies in terms of ‘overall best places to work’ and ‘the extent to which employees feel their skills and talents are used effectively’. The consistency of these low scores point to structural, cultural, and functional problems at the Broadcasting Board of Governors.”
“17) The Broadcasting Board of Governors has an overabundance of senior civil service positions, defined here as full-time employees encumbering GS-14 and GS-15 positions on the General Schedule pay scale.”
“20) Congressional action is necessary at this time to improve international broadcasting operations, strengthen the United States public diplomacy efforts, enhance the grantee surrogate broadcasting effort, restore focus to news, programming, and content, and maximize the value of Federal and non-Federal resources that are dedicated to public diplomacy and international broadcasting.” — Full text of H.R. 4490 – Suspension Text
The following is the text of the letter sent by BBG’s VOA and OCB contractors to BBG Chairman Jeff Shell and members of the U.S. Congress.
November 5, 2014
Mr. Jeffrey Shell
Chairman
Broadcasting Board of Governors
330 Independence Avenue, SW
Washington, DC 20237
Dear Chairman Shell:
We, over 150 content-producing contractors for VOA and OCB, are writing to express our strong concerns to you, the entire Board, and the rest of the management team about BBG’s new contracting model. We urge you to bring to bear the additional resources and attention necessary to avoid any cuts in contractor positions or pay which would subsequently force cuts to programming — including prograrmning to Russia, China, Iran, and other high-priority targeted regions of the world. Such cuts would further threaten the core mission of U.S. international media efforts, just as the critical nature of that mission is being highlighted by Congress and the media.
As you know, the agency currently contracts directly with approximately 700 members of its content-producing staff at a cost of about $30 million per year, a bargain compared to the average cost of their civil service counterparts. Under the new contracting model, the funding will instead be paid to recently announced staffing service companies who, after a considerable markup, will provide the agency’s contracting needs going forward. However, the agency has not identified the additional funding necessary to avoid cutting content producing positions, wages, or both.
Also as you know, this new contracting model, often called “contracting reform,” was prompted by, among other factors, investigations by the Office of the Inspector General and the Internal Revenue Service, which both apparently concluded that, among many other violations, the BBG has been misclassifying its contract workers for years. The Department of Labor and the IRS have taken a tough stance with the private sector on misclassification of workers, but in the BBG case, potential serious and sustained violations are not being given serious attention. Instead, the agency seems to be attempting to sweep the issue under the rug by bringing in a third party middle man to be a buffer between employer and employee, and avoiding any redress for the apparent past wrongdoing.
In total, the new model, in its current form, is the wrong path for the the agency, the contractors, and the U.S. taxpayers.
Bad for BBG
Let’s be clear — every position potentially on the chopping block through this process is involved in content production — the core of the Agency’s mission. They are producers, writers, language experts, camera operators, video editors, graphic artists, etc. Contractors make up around 40% of the entire VOA workforce, an even higher percentage of VOA’s content-producing workforce, and a still higher percentage of the content-producing workforce of some key language services like the Persian service. It is our understanding that every program VOA produces goes through the hands of at least one contractor. Conversely, every contract position not involved in production of content administrative, bureaucratic, IT, transmission, distribution, or other support services — has been exempted from this process. The Agency has been criticized by the sponsors of pending BBG reform legislation, and others, for protecting bureaucratic jobs at the cost of programming. The Agency should avoid adding more fuel to that fire through flawed contracting changes that could cut content production.
Bad for Contractors
Let’s be clear — this isn’t a Halliburton or a $600 toilet seat kind of contracting situation. Nearly all of these 700 contractors make less than market rates, and receive raises in their rates rarely, if ever. Many have been working for the BBG for years, and are at least as dedicated to the mission as any of the agency’s federal employees. But they make less than their civil service counterparts, and receive no benefits, despite doing the same jobs with the same job titles at the same times in the same ways with the same supervision. Many of them are foreign-born journalists and producers, some of whom rely on BBG for J-1 visas, who are happy to be making a living doing the important work of the agency. Yet, under the new contracting model, it is these dedicated contractors — and not any of those responsible for the agency’s acquisition decisions — who will pay the price for the agency’s apparent mistakes.
Bad for Taxpayers
Let’s be clear — the U.S. taxpayers have invested, at bargain prices, in these content-producing contractors. The agency acknowledges that they cannot afford to lose out on that investment, and have made some attempts to keep current contractors in place under the new model. However, those attempts have fallen short, even with a slight increase in funding, for the first round transition of high priority divisions, potentially putting programming to Russia, Ukraine, and parts of Africa at risk. The agency has apparently avoided outright position cuts during this first round, but initial negotiations between contractors and companies reportedly resulted in proposed pay cuts between 10-30%. That is clearly unacceptable for already underpaid contractors. If further negotiations fail, the agency stands to lose these integral experienced content producers, and thus suffer an equivalent of programming cuts. In addition, the new contracting model, in its current form, puts U.S. taxpayers at further risk because every position or pay cut increases the likelihood and magnitude of potential costly litigation.
We urge you, and all of those with authority over the BBG, to step in and right the agency’s contracting wrongs once and for all. Do not remedy past mistakes by making new ones. Give the people who perform the agency’s core mission — producing content that informs, engages, and connects people around the world — the priority and funding they deserve. We look forward to hearing from you. Our informal group can be reached through the email address, voacontractors-moderators@freelists.org.
Sincerely,
[Signatures]
cc:
The Honorable Robert Menendez
The Honorable Bob Corker
The Honorable Marco Rubio
The Honorable Tim Kaine
The Honorable Patrick Leahy
The Honorable Lindsey Graham
The Honorable Barbara Mikulski
The Honorable Bob Casey
The Honorable Sherrod Brown
The Honorable Al Franken
The Honorable Ben Cardin
The Honorable Mark Warner
The Honorable Christopher Coons
The Honorable Jeff Flake
The Honorable Christopher Murphy
The Honorable Ron Johnson
The Honorable Edward Royce
The Honorable Eliot Engel
The Honorable Ileana Ros-Lehtinen
The Honorable Dana Rohrabacher
The Honorable William Keating
The Honorable Gerald Connolly
The Honorable Kay Granger
The Honorable Nita Lowey
The Honorable Mario Diaz-Balart
The Honorable Chris Smith
The Honorable Karen Bass
The Honorable Stony Hoyer
The Honorable Chris Van Hollen
The Honorable Jim Moran
The Honorable Eleanor Holmes Norton
###
The Washington Postcolumn by Joe Davidson provides links to U.S. Government’s Office of Inspector General document and an internal BBG memo to illustrate the story, as well as links to BBG Watch.
Top lawyers at the Broadcasting Broadcasting Board of Governors have received yet another major rebuke for refusing to give up their support for the old management team (some of whose members are still around), which pursued confrontational and costly legal battles with journalists and other employees at the federal agency known for its bottom-low employee morale.
“The Broadcasting Board of Governors lost again in their fight to deny U.S. citizens the priority in promotions they are entitled to,” the American Federation of Government Employees, AFGE Local 1812, union reported this week (March 17, 2015) on its website.
“On March 10, 2015, the Federal Labor Relations Authority (the three-member panel which adjudicates exceptions to arbitration decisions), ruled against the Broadcasting Board of Governors in the case of the BBG’s failure to give United States citizens priority consideration in promotions,” AFGE Local 1812 article states.
The FLRA ordered the Broadcasting Board of Governors to give to U.S. employees harmed in this case “an equivalent position, back pay and interest.” “The back pay should be calculated starting from the date the employee should have been selected for the position and end on the date the employee is placed in an equivalent position,” the FLRA ordered.
AFGE Local 1812 pointed out in its article that “in November 2012, in a message to Agency employees, former IBB Director Richard M. Lobo and VOA Director David Ensor stated that they planned ‘to use all legally available means to contest the (FLRA’s) decisions, and will oppose any effort to force upon the Agency a policy that we strongly believe is illegal, unfair to our non-citizen employees, and contrary to our mission.'”
AFGE Local 1812 had this comment:
AFGE Local 1812 – March 2015
“The BBG then continued its behavior of refusing to abide by the Arbitrator’s decision and award. Despite what they stated and with all due respect to Mr Lobo and Mr Ensor, the Agency had now exhausted its legally available means to contest the decision. The Union was forced to file an unfair labor practice charge against the BBG for their continued illegal actions.”
And this:
Recently, Chinese dissident, Chen Guangcheng visited the Voice of America. Chen became persona-non-grata in his home country of China when he began insisting that Chinese government officials simply follow their own laws. We are not surprised when a country like China violates the principle of the rule of law. However, the rule of law is an important principle of our democracy. It is a shock, at least to some, when government officials in the good ole USA do so and with impunity. Especially at an Agency charged with promoting the ideals that this country was founded on – including the rule of law – to the rest of the world.
Add just one more reason why reform legislation is necessary at the Broadcasting Board of Governors.
This is a second major legal defeat in less than year for former and some current senior International Broadcasting Bureau (IBB) officials, other top executives and agency lawyers.
On May 16, 2014, the U.S. Court of Appeals for the District of Columbia Circuit dismissed the agency’s effort to prevent illegally fired Office of Cuba Broadcasting (OCB – Radio and TV Marti) employees from getting their jobs back after being illegally fired in 2009.
After the May 2014 ruling, BBG Chairman Jeff Shell reportedly intervened and ordered the General Counsel Office at the International Broadcasting Bureau (IBB) — the management arm of the Broadcasting Board of Governors — to stop any more futile and expensive (for U.S. taxpayers and fired employees and their families) actions to prevent Radio and TV Marti employees from getting their jobs back. According to an exclusive March 7, 2015 BBG Watch report, illegally RIFed Radio and TV Marti journalists may be reporting to work in a few days if there are no last minute bureaucratic complications.
In an article published in November 2014, AFGE Local 1812 union thanked BBG Chairman Jeff Shell and now interim BBG CEO André Mendes for directing Agency officials to stop the delays, but some of these officials still occupy key agency positions.
AFGE Local 1812, November 2014
“After the case was finalized in the courts in May 2014, but delays to the settlement award persisted over a number of months, we are thankful that the logjam was broken and so, give thanks to BBG Chairman Jeffrey Shell who directed Agency officials to stop the delays, do the right thing and implement the award, to Director of Engineering and Technical Services Andre Mendes who found a way to get the partial payments to the employees and in so doing, helped to prevent at least one of them from being evicted from his home. Finally, thanks go to all those who despite the threat of retaliation were willing to testify on behalf of their fellow OCB employees, because without the courage to stand up to the abuse of power, justice would never have been served.”
And as the OCB case seems to move toward a just resolution, in the latest ruling on March 10, 2015, the Federal Labor Relations Authority’s (FLRA’s) ruled in favor of BBG’s U.S. citizen employees and their union, rejecting claims from BBG lawyers as being “without merit.”
Federal Labor Relations Authority – March 2015
“But these arguments [from Broadcasting Board of Government’s General Counsel (GC)] provide no basis for finding that the Authority lacks jurisdiction as alleged. The Respondent bases all of these arguments on the premise that the subject matter of the grievance was not arbitrable. But, as discussed below, the Respondent’s arguments regarding the arbitrability of the grievance lack merit. As the premise of the Respondent’s arguments is faulty, the Respondent’s challenges to the Authority’s jurisdiction are without merit.”
-Federal Labor Relations Authority (FLRA) DECISION AND ORDER, March 10, 2015
The latest Federal Labor Relations Authority’s decision and order says that “The Judge properly ruled that the Respondent [Broadcasting Board of Governors] committed a ULP [unfair-labor-practice] when it violated § 7116(a)(1) and (8) of the Statute by failing to comply with the final and binding awards.”
Federal Labor Relations Authority’s (FLRA’s) March 10, 2015 DECISION AND ORDER (EXCERPT)
ORDER
Pursuant to § 2423.41(c) of the Authority’s regulations and § 7118(a)(7) of the Federal Service Labor-Management Relations Statute (Statute), it is hereby ordered that the Broadcasting Board of Governors, shall:
1. Cease and desist from:
(a) Failing and refusing to fully comply with the merits and remedy awards issued by Arbitrator George E. Marshall, Jr., on August 27, 2007 and June 15, 2010.
(b) In any like or related manner interfering with, restraining, or coercing bargaining unit employees in the exercise of their rights assured them by the Statute.
2. Take the following affirmative actions in order to effectuate the purposes and policies of the Statute:
(a) Comply with Arbitrator Marshall’s award by providing those employees individually identified by Arbitrator Marshall an equivalent position, back pay and interest. The back pay should be calculated starting from the date the employee should have been selected for the position and end on the date the employee is placed in an equivalent position. To the extent the employees now occupy a position equivalent to the position they were denied, grant the individuals back pay and interest from the date of their non-selection to the date they were placed in an equivalent position. For positions where the employee would have initially received the same pay grade as in the employee’s previous position, but where the new position had a higher career ladder, the employee should receive back pay for the next higher grade starting one year after the date the employee should have been selected for the position and should receive all subsequent annual career ladder promotions.
(b) The Respondent will issue all open vacancy announcements to only U.S. citizens. If, after the closing for a particular vacancy announcement, it is determined no U.S. citizen is suitably qualified for the position (using the criteria in the vacancy announcement) the Respondent may issue another vacancy announcement for the position that is open to U.S. citizens and non-U.S. citizens. If any U.S. citizens are deemed suitably qualified (using the criteria in the vacancy announcement) a U.S. citizen must be selected for the position.
(c) Meet with the Union about remedy for the remaining class members contained in the Union’s remedy brief.
(d) Post at its facilities where bargaining unit employees represented by the Union are located, copies of the attached Notice on forms to be provided by the Federal Labor Relations Authority. Upon receipt of such forms, they shall be signed by the presiding Governor, and shall be posted and maintained for 60 consecutive days thereafter in conspicuous places, including all bulletin boards and other places where notices to employees are customarily posted. Reasonable steps shall be taken to ensure that such Notices are not altered, defaced, or covered by any other material.
(e) Disseminate a copy of the Notice to all bargaining unit employees through the Respondent’s electronic mail system.
(f) Pursuant to § 2423.41(e) of the Authority’s rules and regulations and within 30 days from the date of this Order, notify in writing, the Regional Director, Chicago Region, Federal Labor Relations Authority, a report regarding what compliance actions have been taken.
Issued, Washington, D.C., May 28, 2014
__________________________
CHARLES R. CENTER
Chief Administrative Law Judge
NOTICE TO ALL EMPLOYEES
POSTED BY ORDER OF THE FEDERAL LABOR RELATIONS AUTHORITY
The Federal Labor Relations Authority has found that the Broadcasting Board of Governors violated the Federal Service Labor-Management Relations Statute (Statute), and has ordered us to post and abide by this Notice.
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT fail or refuse to abide by and implement the final and binding Arbitrator’s Award and Arbitrator’s Remedy Award issued by George E. Marshall, Jr.
WE WILL NOT in any like or related manner, interfere with, restrain, or coerce bargaining unit employees in the exercise of the rights assured them by the Statute.
WE WILL promptly comply with the final and binding awards of Arbitrator George E. Marshall, Jr., by providing certain employees an equivalent position, back pay and interest, by issuing vacancy announcements in accordance with the procedure outlined by the Arbitrator, and by meeting with the Union about the other class members that may be entitled to relief.
_______________________________
Broadcasting Board of Governors
This Notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material.
If employees have any questions concerning this Notice or compliance with any of its provisions, they may communicate directly with the Regional Director, Chicago Region, Federal Labor Relations Authority, whose address is: 224 S. Michigan Avenue, Suite 445, Chicago, IL 60604, and whose telephone number is: (312) 886-3465.
In yet another pointed rebuke to senior International Broadcasting Bureau (IBB) officials, top executives and lawyers, some of whom for years have engaged in mistreatment and intimidation of journalists working for the Broadcasting Board of Governors (BBG) media entities, the U.S. Court of Appeals for the District of Columbia Circuit dismissed Friday the latest agency effort to prevent illegally fired Office of Cuba Broadcasting (OCB – Radio and TV Marti) employees from getting justice and getting their jobs back.
In a written opinion on behalf of three judges, United States Court of Appeals for the District of Columbia Circuit Judge David S. Tatel dismissed the BBG’s petition for review for lack of subject matter jurisdiction. In his opinion, Judge Tatel made a number of comments about mismanagement at OCB and attempts by both OCB and IBB officials to dismiss unwanted journalists and then defend their dismissal rather than implement management reforms. These officials have already wasted millions of taxpayers’ dollars trying to keep OCB journalists from returning to work.
There is also a human story connected with actions of IBB officials. Sixteen OCB employees and their families have suffered enormous hardships after these broadcasters were unjustly dismissed in 2009. But agency officials (IBB), some of whom still hold senior positions despite being responsible for more than a decade of mismanagement and dismally low employee morale (one of the lowest among federal agencies), have for several years delayed implementation of legal rulings that went unanimously against them at every level. After the court issued its decision against the agency on Friday, critics have called on IBB executives responsible for mismanagement and prolonging the suffering of illegally fired journalists to resign.
Some former and current BBG Governors said on record or privately that they were opposed to IBB’s legal maneuverings against OCB’s journalists, but former and current BBG members, including new BBG Chairman Jeff Shell, were unable to stop IBB executives, especially after IBB got the Department of Justice (DOJ) involved in the lawsuit. According to Former BBG Governor, Ambassador Victor Ashe, senior IBB officials failed to consult the BBG board on whether BBG should accept or decline the court mediation service. OCB staffers were dismissed illegally through a RIF (reduction-in-force).
Some of the longer-serving BBG members also appear to have no illusions about IBB officials. Ambassador Victor Ashe and two still serving members, Susan McCue and Michael Meehan, had succeeded in initiating reforms at Radio Free Europe / Radio Liberty (RFE/RL), where dozens of journalists had been also unjustly fired in 2012 (some were later reinstated) while IBB officials did nothing to prevent these firings which caused a major PR and public diplomacy scandal for the U.S. in Russia. Ashe, McCue, and Meehan had to take initiative as board members and repair the damage. These and other board members, however, were not able to deal with every crisis cased by the incompetent IBB management — there were simply too many — especially after some of these crises turned into court cases.
[aside]
“It is apparent that there is no serious interest by Dick Lobo (International Broadcasting Bureau Director until November 2013) or Paul Kollmer-Dorsey (Acting BBG General Counsel, now General Counsel) in solving the Office of Cuba Broadcasting lawsuit which has raked up $3 million plus in taxpayer exposure and may reach $5 million plus.”
“They even declined to consult the Board on whether BBG should accept or decline the court mediation service and proceeded to refuse the offer so the trial proceeds. BBG has lost at every step in the way over 3 years. BBG is getting inadequate legal advice and terrible public relations advice while running the meter for the American taxpayer”
– Broadcasting Board of Governors member (now former) Ambassador Victor Ashe, July 29, 2013.
[/aside]
Former BBG Governor, Ambassador Victor Ashe, while still serving on the BBG board was especially forceful in questioning IBB’s legal tactics against OCB employees and warned repeatedly that these tactics were not only unfair, but represented a tremendous waste of taxpayers’ money. At the time he told other BBG members that they were getting bad legal advice.
In one instance, BBG legal counsel told board members during a public meeting that the U.S. Whistleblower Protection Act of 1989 does not protect government employees who complain to the media instead of alerting law enforcement agencies. The attorney misinterpreted the law. Government employees who expose official wrongdoing to the media are in fact protected by the Act. In another instance, a government official at the Voice of America responded to a citizen’s complaint by asking the United Nations to withdraw press accreditation of an independent American reporter. These incidents happened at a federal agency charged with supporting media freedom and independent investigative journalism. BBG members like Ambassador Ashe were appalled, but some of these officials kept their job, and some even got promoted. No one was held accountable.
Ambassador Ashe issued a statement Friday commenting on the latest court decision against the agency.
“Since I was first on the Board I urged settlement on an issue we inherited. But I was blocked by the BBG’s Legal Counsel. Once again we see the financial costs rising to over $4 million if BBG continues down this path. It is time to settle and treat these employees fairly. They have have suffered long enough,” Victor Ashe said.
After the U.S. Court of Appeals for the District of Columbia Circuit issued its decision against the BBG on May 16, 2014, Tim Shamble, president of the American Federation of Government Employees, AFGE Local 1812, a union representing BBG federal workforce, called for resignations of IBB officials responsible for prolonging “unimaginable hardship on … innocent employees and their families”:
“Agency management is at the end of the road for their legal delay tactics. It is time for someone in upper management to have the courage to end this and bring the illegally-fired OCB employees back to work and make them whole. All those who encouraged and participated in this strategy that caused unimaginable hardship on these innocent employees and their families should be held accountable. In the wake of this definitive decision of the U.S. Court of Appeals for the District of Columbia Circuit, we can only hope that they would surprise us and find the decency to resign,” said Tim Shamble, President of AFGE Local 1812.
The latest decision by the U.S. Court of Appeals for the District of Columbia Circuit against the agency’s top management can now only be appealed to the U.S. Supreme Court. According to one source, some IBB officials have been quoted as saying that they will go all the way to the Supreme Court against OCB journalists.
Opening statement by Judge Tatel, Circuit Judge, in the May 16th, 2014 decision, left little doubt what he thinks about the agency’s management:
TATEL, Circuit Judge: Compared to the charges of cronyism, waste, and mismanagement that dominated this dispute in its earlier stages, the legal issue we confront is quite tame. After an arbitrator found that Petitioner Broadcasting Board of Governors violated both a collective bargaining agreement and federal labor relations law when it laid off sixteen employees, the Federal Labor Relations Authority upheld the arbitrator’s determination. The Board of Governors now petitions for review. Because Congress has barred the courts from hearing challenges to FLRA orders that “involve an award by an arbitrator, unless the order involves an unfair labor practice,” 5 U.S.C. § 7123(a), we must determine whether the order at issue here, which undoubtedly involves an award by an arbitrator, also involves an unfair labor practice. Finding that it does not, we dismiss the petition for lack of subject matter
jurisdiction.
Short of calling the BBG’s legal arguments frivolous, Judge Tatel made a few sharp comments about the agency’s legal case:
TATEL, Circuit Judge: In a comprehensive and blistering opinion, the arbitrator dismissed the Board’s justifications for the reduction-in-force, determining that the layoffs were in fact part of the then-Office director’s “bad faith plan to at least intimidate, if not actually get rid of, his internal critics.”
TATEL, Circuit Judge: Accordingly, given Board counsel’s refreshingly candid concession that he knows of no cases where either the FLRA or any court has found a “covered by” defense relevant to the scope of a contractual duty, Oral Arg. Rec. 2:05–:30, we decline the Board’s invitation to do so here.
Discredited actions of IBB officials have also caught the attention of members of Congress. A bipartisan bill, the United States International Communications Reform Act of 2014 (H.R. 4490), includes damning findings about the agency’s management, which is largely the role of IBB. Democratic and Republican members of the House Foreign Affairs Committee approved these findings unanimously and essentially proposed to the whole Congress and the President to abolish the IBB. Another proposed bill would abolish the Voice of America whose senior officials were accused by members of the House Foreign Affairs Committee, both Democrats and Republicans, also of mismanagement and violations of the VOA Charter. H.R. 4490, however, would preserve VOA but impose management reforms.
Members of Congress noted that the agency ranks at or near the bottom of all Federal agencies in terms of ‘‘overall best places to work’’ and ‘‘the extent to which employees feel their skills and talents are used effectively.’’ “The consistency of these low scores point to structural, cultural, and functional problems at the Broadcasting Board of Governors,” the reform bill’s sponsors concluded. They also found that “the Broadcasting Board of Governors has an overabundance of senior civil service positions, defined here as full-time employees encumbering GS–14 and GS–15 positions on the General Schedule pay scale.” Many of these senior civil service positions are held by IBB officials responsible for the mismanagement of the agency and mistreatment of journalists.
The oversight Broadcasting Board of Governors has been largely powerless and unable to control the IBB bureaucracy under the current legislative setup, which H.R. 4490 is designed to reform. The IBB director was nominated by the President and could not be removed by the board. The director in turn protected his top managers whom the BBG board also could not fire.
Background
Already in November 2011, a federal arbitrator has issued a stunning rebuke against the Broadcasting Board of Governor’s Office of Cuba Broadcasting for using a reduction in force action to eliminate AFGE activists and other employees who had been outspoken critics of the agency. In a 94-page decision on Nov. 19, 2011, Arbitrator Suzanne R. Butler ruled that a former OCB Director had ordered the RIF and conducted it in such a way as to target employees who had spoken out to Government Accountability Office investigators. The award states that “[the] Director knew that, by sequencing certain reassignments of certain employees, he could shield employees whom he regarded as supporters and punish, maybe even get rid of, other employees who had spoken critically to GAO investigators – all under cover of a probably-upcoming budget reduction that could be used to justify a RIF – and no one would ever be the wiser. (He was wrong.)”
Instead of implementing Arbitrator’s decision, the agency went to The Federal Labor Relations Authority (FLRA). The agency’s acting General Counsel Paul Kollmer-Dorsey handled the OCB case. He was later promoted to be General Counsel.
The Federal Labor Relations Authority upheld Arbitrator’s ruling in a case which had been brought initially by the American Federation of Government Employees. FLRA again found that the Broadcasting Board of Governor’s Office of Cuba Broadcasting illegally used a reduction in force action to fire union activists and other employees who had been outspoken critics of the agency.
The FLRA rejected every argument made by the agency. “This decision should put every agency on notice that they cannot use budget shortfalls or funding cuts as an excuse to go after specific federal workers who the agency doesn’t like,” said AFGE Associate General Counsel Leisha Self, who represented the AFGE Local 1812 members in their grievance.
The FLRA’s decision cleared the way for the 16 employees who were separated or otherwise affected during the 2009 RIF to be reinstated without loss of seniority or benefits, but instead of implementing the FLRA’s and the Arbitrator’s decision, the agency’s senior executives and their chief lawyer reportedly pushed for the Department of Justice to get involved and to take an unprecedented step of going to the D.C. Court of Appeals.
The case was argued in March 2014, as described in this AFGE Local 1812 union article:
Several of the illegally RIFed employees of the Office of Cuba Broadcasting (OCB) attended the Appeals Court hearing on Thursday, March 13, 2014 in Washington, D.C.
Salvador Blanco, Attorney Leisha Self, AFGE Local 1812 President Tim Shamble, and Roxana Romero
Salvador Blanco, Luis Guardia, Alberto Muller, and Roxana Romero attended the hearing along with AFGE Local 1812 president Tim Shamble. Attorney Leisha Self argued part of the case on behalf of the Union employees. A decision by judges Garland, Tatel, and Pillard against the Broadcasting Board of Governors (BBG) in this case should finally end the long nightmare that has been inflicted on the 16 employees.
On November 19, 2011 Federal Arbitrator Suzanne R. Butler had ruled that 16 employees at the OCB had been illegally RIFed in late December 2009. Among other things, she had ordered their immediate reinstatement. The BBG refused and instead appealed Arbitrator Butler’s decision to the Federal Labor Relations Authority (FLRA).
The FLRA denied the BBG’s appeal on September 25, 2012 (66 FLRA No.182). The United States Congress established the FLRA as the final arbiter of federal labor disputes but under limited circumstances a decision by the FLRA can be appealed to Court. If an unfair labor practice (ULP) is a part of the decision the Appeals Court has jurisdiction. Both the Arbitrator and the FLRA made clear that the basis for their respective decisions did not involve an ULP.
Salvador Blanco, Luis Guardia, Attorney Leisha Self, and AFGE Local 1812 President Tim Shamble
Undeterred, on November 20, 2012 the BBG appealed to the Court anyway. More than a year later that appeal was heard. In the meantime these employees have been prevented from doing their jobs for over four years. Many have suffered severe financial harm. At least one of the employees has had his home foreclosed on.
If the Court rules that they do not have jurisdiction in this case it virtually would be the end of the line for the BBG. It is very unlikely that they would appeal to the Supreme Court. They would be legally required to implement the Arbitrator’s decision. In the interim, the illegally RIFed employees try to maintain as best they can hopeful in the belief that justice will finally be done.
As IBB executives who were responsible for preventing the return to work of illegally RIFed OCB journalists were collecting their annual $10,000 bonuses and approved their own travels around the world at taxpayers’ expense, OCB employees were experiencing tremendous hardships and suffering.
From the firing of Radio Liberty journalists in Russia to the illegal RIF of OCB broadcasters, BBG Watch continues to document enormous human suffering under the management culture of the International Broadcasting Bureau (IBB). This especially moving and heartbreaking story comes from a former Radio/TV Marti journalist.
Introduction to Roxana’s Story
The affected employees have been out of their jobs for nearly four years.
During the arbitration, agency officials claimed that there was no malice directed against these employees and that the RIF was just an unfortunate necessity. Since the time they were RIFed, several of the employees deprived of their livelihood by what the Arbitrator ruled was an illegally-conducted RIF have fallen upon hard times. Some have applied numerous times for positions for which they were qualified with both the OCB and the Voice of America (VOA) only to be turned down for the positions. Attached to all sixteen of the broadcasters involved in that unnecessary reduction-in-force in 2009, there is a human story.
Roxana’s Story
Roxana Romero was one of those employees and describes what her life has been like as a result of being illegally RIFed.
“Perhaps it was naiveté on my part, but I ALWAYS thought my position as TV Marti’s New York-based correspondent would survive the RIF. I was working out of the number one news market covering the same stories as the big networks and international news agencies: everything from the United Nations Security Council to the aftermath of 9/11, and everything in between. I was the only multi-media employee: self-assigning stories, interviewing subjects, shooting video, writing, translating, editing, and forwarding a daily news package to our studios in Miami. Ahh, but alas, all my hard work, commitment to my craft, and ten-plus years of devotion that were duly noted with numerous recognitions and favorable employee evaluations would not survive the former Director’s wrath!
That was four years ago. I was a lot more trusting then, even though I was 38 at the time. Apparently, I always looked at life and its circumstances through rose-colored glasses. Today, it’s tough to see beyond the grey film. The post-RIF financial and emotional hardships continue to have an astronomical impact on my life. I moved back to Miami months after I was laid off because I couldn’t find a job, and simply could not survive on unemployment wages. I’ve been hospitalized twice in the past three years, diagnosed with migraine clusters brought upon by stress. I’ve gained tons of weight. I lost my property to a short sale. I’ve had to move countless times because I found it difficult to afford the rent.
Yet, despite the setbacks, I’ve tried to move beyond this almost four-year nightmare and pave the way for a better future for myself and my family. But finding a job, despite my extensive experience across many platforms, has proven grueling, especially at the BBG. I’ve applied to a number of jobs within the Agency, including the OCB. My applications have continuously been rejected. Recently, I was interviewed by the VOA-LATAM for the International Broadcaster (Multimedia) (Spanish) position in New York. Even though the responsibilities mirrored the ones I carried out for TV Marti while working in Manhattan, the selecting office indicated that I was “not selected for the position.” People less qualified than I have been hired as contractors or have been switched to other departments to save their employment in the eventuality of a RIF. One full-time position for which my qualifications exceeded the requirements was actually eliminated and given to a contractor.
I finally found a part-time job as a media relations writer in academia. In this capacity, I’ve met two recently-hired contractors working as reporters at the OCB, and an anchor who was brought in not long after the RIF. This month, OCB hired a producer for television. This is all occurring at time of sequestration and the Federal Government conducting furloughs across the board. TV Marti’s news operations were supposedly eliminated because of budgetary constraints. Yet, there is anecdotal evidence that full-time employees and contractors are flying to South America, the Caribbean, and all over the world to cover stories. If OCB needed contractors to fill air time, why didn’t it look to the RIFed employees like me who dedicated their professional careers to upholding OCB’s mission to bring fair and objective news to Cubans on the island?
In spite of all this, I have complete confidence that we will come out victorious once again, all the injustices will be corrected, and the rule of law will prevail. When that moment comes, the real losers will be the taxpayers. They will be the ones who will have to foot the bill for millions of dollars in totally unnecessary expenditures brought about by a group of high-level bureaucrats going to extremes to not admit any wrong-doing, and to spend money that’s not coming out of their own pockets!”
From the firing of Radio Liberty journalists in Russia to the illegal RIF of OCB broadcasters, BBG Watch continues to document enormous human suffering under the management culture of the International Broadcasting Bureau (IBB).
This story comes from a former Radio/TV Marti journalist Salvador Blanco who, we are told, is one of the most beloved personalities in Cuba because of his status as a former political prisoner.
Attached to all sixteen of the broadcasters involved in that unnecessary reduction-in-force in 2009, there is a human story.
Salvador’s Story
By Salvador Blanco, OCB RIFed Employee
Salvador Blanco at the Camera
I am an ex-political prisoner who served time in Cuba’s jails. But that doesn’t matter. I have exhibited 13 documentaries on human rights violations in Cuba and around the world, and the threat of populism in Latin America and in the United States, among others. These documentaries have been played in world venues including the Human Rights Commission in Geneva year after year. But that doesn’t matter. I am equally comfortable as an anchor, reporter, field and line producer, cameraman, editor. But that doesn’t matter, either.
Before I went to work for the Office of Cuba Broadcasting (OCB) – petitioned by none other than its then-director, Pedro Roig – I owned Salvador Productions. With an innate, insatiable thirst to fight for the freedom of the Cuban people, I accepted the job at the OCB for the “love of my country.” My business was booming. I had accounts with different national and international media outlets like ESPN, TV Globo (Brazil), Canal 10 (Australia), BBC, Telemundo, Univision, car manufacturing giants such as Ford, Toyota, and Chevrolet. I also produced work for political campaigns. I thought to myself, “As a federal employee, I can provide my family with excellent benefits like health insurance and retirement.” According to focus groups, I always had positive feedback and even fared outstanding in the annual, federal worker evaluations. But that doesn’t matter, either.
The OCB continues to hire contractors and create jobs for which all of the RIFed employees are qualified, and have not been given any priority. The Agency’s actions continue to apparently violate federal laws. But that doesn’t matter, either.
It’s really my fault for believing that the Broadcasting Board of Governors (BBG) would do right instead of allowing its qualified RIFed employees to live in a legal limbo, because of personal and political interests.
I would like to send a special shout-out to Victor Ashe, former BBG governor, and commend him on his honesty and solidarity with the illegally-RIFed employees of the OCB. I, myself, join in solidarity with the Radio Free Europe/Radio Liberty Russian Service employees who were brutally mistreated and also dismissed from their duties. And to Tim Shamble, AFGE Local 1812 President and Leisha Self, attorney extraordinaire, for their immeasurable talent and dedication to finding justice for all of us who were wronged!
We, the RIFed employees of the OCB/TV Marti, have won two legal cases against the BBG. That Does Matter!
The BBG continues to wage a losing battle against justice. What do they care? They’re not reaching into their own pockets to pay for this drawn-out legal process. Apparently, that doesn’t matter, either.
The real loss is to the citizens of this great country who pay taxes. Ultimately, the monies will come out of your pockets! And that definitely matters!
Tim Shamble, the President of the BBG employee union, AFGE Local 1812, spoke in April 2013 at an open board meeting of the Broadcasting Board of Governors. He pointed out at that time that the International Broadcasting Bureau executives were refusing to settle a suit filed by the Office of Cuba Broadcasting (OCB) employees who were illegally RIFed.
Despite several judgements against the agency and practically no hope that the agency will ever prevail in court, the Office of General Counsel and IBB’s top leadership refused to settle the case while RIFed employees were being threatened with foreclosures on their homes and were otherwise exposed to great hardships. U.S. taxpayers will also be losing millions of dollars because of the delay tactics adopted by these officials.
In painting the picture of the top IBB officials’ contempt for BBG employees and the law, Tim Shamble explained in April 2013 how ironic it was that IBB executive staff was talking to the union about ways of improving dismal employee morale — an initiative the union president welcomed — while ignoring the plight of the illegally RIFed OCB broadcasters. Shamble also pointed out that IBB officials were even refusing to agree in union-management negotiations to the use of such terms as “fairness” and “dignity.” IBB officials participating in these negotiations along with others have been consistently rated in the Office of Personnel Management (OPM) employee surveys as being some of the worst managers in the federal government.
BBG’s Ambassador Victor Ashe took a note of these issues during the April 2013 meeting by asking IBB and OCB officials to make a strong effort to resolve the case of illegal RIFs at OCB and to save U.S. taxpayers’ money. He also indicated that the management’s inability to come to terms with the union on a new contract may also be a waste of taxpayers money in addition to making employee morale even worse than it is. It was clear from looking at the IBB officials that since the money does not come out of their own pockets they could care less and are going to ignore Ambassador Ashe’s comments.
A year later, the apparent determination of a few remaining senior IBB officials (some have left but others still occupy high level positions) to continue their campaign of intimation against the agency’s journalists is truly reprehensible and hypocritical for an agency charged with promoting media freedom abroad. Similar tactics have been employed by them not only at OCB and the Voice of America (VOA), but also had been used earlier to fire outstanding journalists at Radio Free Europe / Radio Liberty (RFE/RL) in the early 2000s and again in 2012.
The management culture of intimidation against unwanted journalists through questionable and illegal administrative measures has continued for years under the same small group of officials holding SES and GS-15 positions. Only very recently the BBG board put in place at IBB a new interim three-person management team in an attempt to reform it. But at least one executive responsible for the appalling treatment of employees over many years was promoted and another one still holds a key bureaucratic position and enjoys foreign travel and all the other perks and benefits of federal employment while RIFed OCB journalists lose their savings, houses, and health.
The previous IBB management team was also responsible for proposing to eliminate numerous programs and programming positions. They were giving themselves $10,000 bonuses and expanding their bureaucratic power-base through a 37% increase in the number of IBB jobs in the last seven years while many experienced journalists were being RIFed. The largest growth among IBB offices from 6 positions in FY2007 to 15 positions in FY2014 (150%) occurred in the agency’s Office of General Counsel.
As programs and programming jobs were being eliminated, IBB officials then employed hundreds of poorly-paid and poorly-trained contractors and violated federal law and regulations in the process, according to audits by OIG and IRS. They have never been held accountable, not even when a new interim management team was installed. But after this latest rebuke from the U.S. Court of Appeals for the District of Columbia Circuit, “all those who encouraged and participated in this strategy that caused unimaginable hardship on these innocent employees and their families should be held accountable.”
As Tim Shamble, President of AFGE Local 1812 said “we can only hope that they would surprise us and find the decency to resign.”
“Great to see @Microsoft doing the right thing by extending paid leave benefits to contractors,” a White House tweet posted this morning (11:51 AM – 26 Mar 2015) says.
From the firing of Radio Liberty journalists in Russia to the illegal RIF of OCB broadcasters, BBG Watch continues to document enormous human suffering under the management culture of the International Broadcasting Bureau (IBB).
