The Politics (and Money) of Federal Union “Official Time”

In another dispute involving the union’s use of official time, FLRA backed off a stance taken in previous decision, reminding all of us again how important union institutional issues are to Federal unions and their friends among the “neutrals”. The author suggests that employee working conditions’ improvements take a back seat to union institutional issues again and that FLRA’s reversal is part of the politics of labor relations and clearly not part of the the law.

As a recent Federal Labor Relations Authority decision reminds us, institutional union issues still top the list of priorities for Federal labor unions. 62 FLRA No. 67, decided March 27, 2008, deals with telework for union representatives. The case, involving Agriculture’s Food Safety and Inspection Service and AFGE’s National Council of Locals, arose after an earlier FLRA decision involving the Department of Housing and Urban Development and the National Council of Locals (60 FLRA No. 68) upheld an arbitrator’s finding that telework meant Agency “work” and that the law governing telework did not authorize pay for union representational duties if the employee was otherwise “working” for the Agency away from the assigned duty station (usually at home).

Before and After

The HUD case, decided by three members, is vastly different than the FSIS case decided by only two. In HUD, the FLRA said,

“The parties cite, and we are otherwise aware of, no basis for a Federal agency to establish a telecommuting program, except pursuant to § 359. Accordingly, we find that Congress intended § 359 to be the sole authority for such programs. Further, in considering § 359 together with its legislative history, it is clear that Congress intended to limit telecommuting to the performance of “officially assigned duties.”(my emphasis)

However in the FSIS case, it now says,

“As longstanding precedent holds that the performance of representational duties does not involve the “work” of an agency, the Authority held that § 359 does not provide an authorization for union representatives on official time to telecommute. Id.Applying this same rationale, § 359 also does not prohibit union representatives from performing representational duties on official time in their homes because it does not speak to the issue of official time at all.”


So let’s see if I’ve got this right. The sole authority for an employee to perform “work” at home is Section 359 but since the section addresses work and the FLRA went to extremes in the HUD decision to say that representational activities were not work, it’s OK to spend Agency funds for that purpose. The problem is that the Federal sector labor law only allows official time in amounts the parties “agree to be reasonable, necessary, and in the public interest.” And permits official time only “during the time the employee otherwise would be in a duty status.” So, union reps would otherwise have to have be in a duty status to get official time but the telework law only allows pay for “work” so, if they are at home and want to do representational activities, they have by definition stopped “work” and can’t get paid under the telework provision.

Now, maybe I missed something in my time in Federal service, but I thought that Federal Agencies could only expend funds under a specific provision of law. The official time provision (5 U.S.C. 7131) makes absolutely no mention of where such activities may take place leaving once again the FLRA to arrogate to itself the interpretation and application of laws outside the Federal labor statute. But here goes the FLRA again, as it did in deciding its employees should be unionized in apparent conflict with law, bending the law to serve its purposes. Shame on them again.

Institutional Union Benefits

In both of the cases cited above, one or more union officials were authorized 100% official time. The union at FSIS has membership at the 90% plus level. I don’t think the HUD Council has more than 25%. Regardless, your tax dollars are subsidizing Federal union activity at substantial levels. Including other union institutional benefits such as office space, use of Agency computers, copiers, office supplies and the like, costs to the government of its unions have been estimated to be in excess of $100,000.000.00. That’s right, 100 million! So what do the unions do with the money that comes from dues? You guessed right if you say it goes to political activity. Oh, did I fail to mention that the FLRA decided some time back that union reps could use official time and facilities to lobby Congress, a matter that many believe violates at least two Federal statutes.

Asleep at the Switch

In the end, my question is a simple one. If a manager so much as thought about doing what Federal employee union reps do with impunity, how many inspectors general, internal affairs types, MSPB Special Counsel people and virtual hordes of other investigators would descend upon him or her in numbers that would fill FedEx Field?

It’s not the double standard that bothers me most, it’s the hypocrisy.

Particularly in light of the above, please remember that the opinions expressed herein, are mine alone and not necessarily those of FedSmith or anyone else I work with from time to time.

About the Author

Bob Gilson is a consultant with a specialty in working with and training Federal agencies to resolve employee problems at all levels. A retired agency labor and employee relations director, Bob has authored or co-authored a number of books dealing with Federal issues and also conducts training seminars.