A new Executive Order designed to cut down the amount of time used by federal employees working on behalf of a union was issued by President Trump on May 25, 2018. This Executive Order was summarized in an earlier column on FedSmith.
The Office of Personnel Management (OPM) has now issued guidance on how agencies are to implement this Order. The Order is entitled Ensuring Accountability and Efficiency for Union “Official Time”.
When Does the Executive Order Become Effective?
The new Order directs agencies to consult with unions about implementing the directive on the earliest date permitted by law.
According to OPM, an agency that has an agreement with a union that is inconsistent with the EO must advise the union at “the earliest moment the law permits” to notify the union representing its employees of the agency’s intent to alter the terms of the agreement. Agencies are being directed by OPM to “either reopen negotiations and negotiate to obtain provisions consistent with the EO, or subsequently terminate such provision and implement the requirements of the EO….”
OPM notes that executive orders are the same as a government-wide rule. In effect, provisions of the new Executive Order go into effect on the date a collective bargaining agreement expires or automatically renews. This is the case even if the agreement wit the union has been reopened for negotiations.
How Much “Official Time” is Too Much?
The new Executive Order quotes the federal labor relations statute in various places. The Order, however, has a more restrictive interpretation of provisions regarding a federal employee’s using time to represent a union instead of performing the duties of the federal job the employee (who also performs as a union representative) was hired to perform.
In this regard, the Executive Order reads:
Federal employees should spend the clear majority of their duty hours working for the public. No agency should pay for Federal labor organizations’ expenses, except as required by law. Agencies should eliminate unrestricted grants of taxpayer-funded union time and instead require employees to obtain specific authorization before using such time.
OPM Guidance on Restricting Official Time Use
OPM notes in its guidance that taxpayer-funded union time is not ordinarily “reasonable, necessary, in the public interest, or consistent with effective and efficient Government where the taxpayer-funded union time rate in any bargaining unit exceeds 1 hour per bargaining unit employee.”
OPM also recommends that a federal agency should “assess its union time rate for previous years to assist in making appropriate adjustments on authorization and use of taxpayer-funded union time going forward, which should occur at the earliest practicable date permitted by law and subject to appropriate collective bargaining obligations.”
There are instances where an agreement with a union contains language that provides more time than considered reasonable in the Executive Order. Therefore, OPM is telling agencies they “shall take steps to modify … agreements at the soonest permissible opportunity to ensure that unrestricted grants of taxpayer-funded union time are eliminated and that agencies have mechanisms in place to ensure that employees request and receive specific authorization prior to utilizing taxpayer-funded union time and to carefully monitor taxpayer-funded union time to ensure that it is used only for authorized purposes.”
“Draining The Swamp” with Official Time Restrictions
Here are the most significant restrictions on a federal employee using official time to represent the union:
- New reporting requirements are included in the Order that if an agency agrees to authorize taxpayer-funded union time that would cause the union time rate to exceed one hour.
- Employees are expected to spend at least three-quarters of their time during a fiscal year performing their duties as a federal employee and not as a union representative.
- No employee acting on behalf of a federal labor organization will be permitted free or discounted use of government property or agency resources. This includes office or meeting space, reserved parking spaces, phones and computers.
- Employees cannot use union time to prepare or pursue grievances brought against an agency.
OPM Guidance on Implementing These Restrictions
For the most part, these restrictions became effective on July 9th. There are major exceptions though.
In agencies with union agreements that conflict with these requirements, the new restrictions do not take effect until the current union agreement expires or automatically rolls over. When that date arrives, according to OPM, the new restrictions then apply “whether or not the (union agreement) is reopened for negotiations or if a (union agreement) contains a reopener provision permitting the EO to be immediately effective during the term of an agreement.”
The OPM guidance essentially tells agencies that the government is serious about implementing these new restrictions and to take action to restrict union activity as soon as possible within any legal restrictions that are applicable. The OPM guidance notes it will “propose new or revised regulations for notice and public comment as soon as practicable to assist agencies in ensuring compliance with these requirements and restrictions as related to the use of taxpayer-funded union time.”
Written Approval Required for Using Official Time
The Order notes that using taxpayer-funded union time by an employee without advanced written agency authorization, or for purposes not specifically authorized by the agency is “absence without leave” and the employee may be the subject of disciplinary action.
Some union agreements now allow one or more employees to spend all of their time working on behalf of a union rather than as a federal employee. Many agreements do not place restrictions on how much time can be used by an employee working for the union. Because of this, OPM is telling agencies to:
…[T]ake steps to modify CBAs and other agreements at the soonest permissible opportunity to eliminate unrestricted grants of taxpayer-funded union time and put mechanisms in place that require employees to request and receive specific authorization prior to utilizing taxpayer-funded union time, and agencies should carefully monitor taxpayer-funded union time to ensure that it is used only for authorized purposes.
Agencies Directed to Pay Closer Attention to How Official Time is Used
Agencies are also now being directed “to monitor any unlawful uses such as internal union business, certain lobbying activities, and political activities as defined in the EO.”
There are a number of instances in agencies where union agreements contain contract language contrary to the requirements of the Executive Order. In these cases, OPM is effectively telling agencies to get the job done and to implement these restrictions at “the earliest practicable date permitted by law to seek negotiations on bringing the collective bargaining agreement into compliance with the EO.”
Implications of Restrictions
Outside of the federal government, most Americans would probably be surprised that many of these restrictions are not already in place. The reality is that since passage of the Civil Service Reform Act of 1978, unions have gradually used more paid time to perform duties on behalf of the union. There are also indications that some agencies do not have any significant controls over how the time is used and probably do not know how the time is being used and if the use of official time would be authorized under the requirements that existed prior to the Executive Order.
Federal employee unions are declaring the restrictions are “democracy busting executive orders” and amount to an attempt to “politicize the apolitical civil service system”. There is no indication of irony. Unions generally overwhelmingly support Democrats. Press releases are routinely issued as federal employee representatives of the “apolitical civil service system” generally vigorously supporting Democrats seeking political office in the upcoming mid-term elections.
Should the Executive Orders emerge from the flurry of lawsuits and publicity being generated with the new restrictions largely in place, federal employee unions will have to consider other options for working in federal agencies. This could mean working to recruit new members to spread the use of official time among more people or hiring people to work on behalf of the union who are not federal employees. Presumably, some of these changes or other innovations will become evident as agencies start implementing the newer restrictions.
And, while some agency labor relations representatives may have been comfortable doing their jobs with the much looser attitude toward unions exhibited during the Obama administration, the jobs of these representatives have suddenly changed. Presumably, those who disagree with the restrictions and do not perform as expected to implement them will seek employment in a different field rather than taking on the responsibility of ensuring compliance with the OPM guidance and new Executive Orders.