January 9, 2004

Fighting Words

By Amelia Gruber and Chris Strohm

An October outburst against federal employee union members has landed the acting secretary of the Housing and Urban Development Department in trouble.

Alphonso Jackson, who stepped in as HUD secretary when Mel Martinez left last month to run for a Senate seat, railed against members of the National Federation of Federal Employees (NFFE) Local 1450 during an Oct. 20, 2003 meeting at a Los Angeles field office. The verbal attack violated federal labor laws and HUD policies, the union charged.

"When I was a child, it took my father three whuppings to get the message through to me," Jackson allegedly told 110 meeting attendees. "And that's what I am prepared to do. I do not want any more problems from this field office."

Jackson, nominated on Dec. 12 to permanently replace Martinez, purportedly called NFFE projects "asinine," and singled out R. Scott Reed, the union's field office representative, in a stream of insults. Jackson threatened to watch Reed's work performance closely for signs of improper union activity.

This outburst intimidated union members, NFFE complained to the Federal Labor Relations Authority (FLRA). In December 2003, the FLRA found evidence that Jackson had violated a federal law prohibiting agencies from meddling with employees' right to "seek the union's assistance, free of restraint or coercion."

In addition, Jackson's tirade violated the HUD field office's May 2002 policy on workplace violence, the union claimed. This policy outlaws "violent outbursts, intimidation, threats, harassment, bullying or other forms of aggressive or disruptive behavior."

FLRA suggested that Jackson post apologies for his attack in the HUD office. The notices would assert that he is committed to "a positive and effective labor-management relationship." HUD agreed to the terms of the proposed settlement, but the union said the agreement did not go far enough.

The union asked that Jackson read his apology aloud to employees at the Los Angeles field office and promise to end his combative behavior. But in a Dec. 29 letter to union officials, FLRA asserted that a punishment that severe should be reserved for cases where there is a pattern of "protracted, egregious conduct."

Meanwhile, the union also filed a formal grievance with HUD headquarters. But HUD sent the complaint back, informing NFFE that the grievance must go directly to the Los Angeles field office.

In a Jan. 7 letter to HUD Inspector General Kenneth Donohue, Rep. Henry Waxman, D-Calif., said that "this would appear to create an inherent conflict of interest since one of Jackson's subordinates would be responsible for determining whether disciplinary action should be taken against him." Reed, the union representative allegedly singled out by Jackson, is one of Waxman's constituents.

Waxman asked Donohue to initiate an investigation of Jackson's behavior and requested a reply by Jan. 14.

"Because of Jackson's upcoming confirmation hearings, a prompt investigation is important," Waxman said.

Anthrax Agony

Plaintiffs challenging the Pentagon's controversial anthrax vaccine program amended their complaint this week to be a class action lawsuit, opening the door for more than 2 million service members to participate, a lead attorney for the case said Thursday.

The amended complaint was filed in response to the government's claim that the scope of an injunction against the anthrax program should be limited to the six anonymous people who originally brought the lawsuit, and not the entire military, said lead attorney John Michels. He said the government left the plaintiffs no other option, and estimated that more than 2 million active, Reserve and National Guard members could qualify to join the class action lawsuit.

"If the government is concerned about morale, it seems that telling us that we need to get all these members of the armed forces as litigants against the Secretary of Defense runs counter to that concern," Michels said. "But if that's where the government wants to take us, that's the direction we're going to head."

On Wednesday, U.S. District Judge Emmet Sullivan of the U.S. District Court for the District of Columbia lifted an injunction halting the mandatory immunization program. The Pentagon immediately announced that it would resume shots for all personnel except the six anonymous people who brought the suit.

Last month, Sullivan ordered the Pentagon to stop the mandatory immunization program on grounds that the Federal Drug Administration never specifically approved the vaccine to be effective against the inhalation of anthrax. He said the vaccine amounted to an investigational drug with respect to that form of the disease.

On Dec. 30, 2003, however, the FDA announced a new "final rule and order" that officially declared the anthrax vaccine effective against inhaled anthrax. The government immediately asked Sullivan to lift the injunction on the program.

The plaintiffs contend the anthrax vaccine should be categorized as an "investigational new drug," and therefore not mandatory. President Clinton signed an executive order in 1999 prohibiting the Defense Department from administering investigational new drugs to service members without their informed consent, except in times of national emergency.

Michels said the class action status must be approved by the court before it goes into effect. He said the plaintiffs have 90 days to make their case for class action status, and will also challenge the legality of the FDA's final rule.

Hundreds of service members have refused to take the vaccine out of concern about its safety, and many have been court-martialed, forced out of the military and, in some cases, imprisoned.

Doe et al. v. Rumsfeld et al., U.S. District Court for the District of Columbia (03-CV-00707).