New Guidance to Agencies from OPM
The Office of Personnel Management has issued updated guidance regarding the implementation of several Executive Orders that impact the federal workforce. The Executive Orders largely pertain to how agencies deal with federal employee unions.
The new guidance from OPM reads, in part:
As noted in OPM’s preliminary guidance, the Court’s decision does not limit or otherwise modify Agency or Union collective bargaining rights and obligations under the Federal Service Labor-Management Relations Statute. This includes the Agency’s right to make proposals in the context of collective bargaining, including over subjects that were discussed in the Executive Orders, and to fashion those proposals in a manner that best reflects critical agency priorities.
Consistent with this principle, agencies should approach bargaining, including bargaining over those subjects covered by the currently enjoined provisions of the Executive Orders, as a party to the statutory collective-bargaining process — that is to say, in a good-faith manner that best reflects agency mission needs. Agencies retain the authority to draft proposals and take positions during bargaining that are consistent with law and arrived at using independent judgment, taking into account agency-specific circumstances.
New Restrictions on Use of Official Time at VA
On the same day, the Department of Veterans Affairs (VA) issued a memorandum. The subject of the memo is: “VA returns medical professionals currently serving unions to serving Veterans”.
The VA memo writes that the agency is “moving nearly 430 medical professionals from taxpayer-funded union work back to health care jobs serving Veterans.” This means that the agency is imposing restrictions on allowing agency employees to work for a union while continuing to receive the salary and benefits of a federal employee.
$49 Million Spent by Agency in One Year for Union Work by Employees
The policy regarding the use of official time applies “to all of VA’s nearly 104,000 title 38 employees, eliminating all forms of taxpayer-funded union work for “medical professionals”. The positions impacted include physicians, dentists, registered nurses, and podiatrists.
A VA official was quoted in the press release that reads:
Allowing health care workers to do taxpayer-funded union work instead of serving Veterans impacts patient care negatively. President Trump has made it clear – VA employees should always put Veterans first. And when we hire medical professionals to take care of Veterans, that’s what they should do at all times. No excuses, no exceptions.
The agency stated in its memo that “VA employees spent more than a million hours doing taxpayer-funded union work at a total cost of more than $49 million” in fiscal year 2016.
Repudiating Master Agreement at VA
On November 7th, the agency notified the president of the VA National Veterans Affairs Council that it was repudiating provisions of the master agreement between the agency and the union. The memo states that “FLRA precedent allows federal agencies to lawfully repudiate a collective bargaining agreement provision that conflicts with federal law.” In effect, the agency was notifying the union that Title 38 employees would no longer be allowed to use official time to work on union activities while being paid their regular salary and benefits as a federal employee.
The union representing many of the employees in the VA essentially contends that the $49 million spent on official time in fiscal year 2016 was worth the expense. The union issued a press release contending the new policy will be “disastrous for our veterans”. AFGE wrote:
[T]his is an attempt to silence the voices of VA employees at a time when such oversight is more critical than ever. Clinicians use official time to raise concerns about patient safety, access to care, and staffing shortages. Silencing their voices endangers our veterans.
The union also argues the agency’s action is “breaking the law” and that “The Trump administration already has been rebuked twice for trying to deny workers their representational rights.”
More Litigation on the Way
No doubt, there will be more decisions issued on the VA’s repudiation of portions of the master labor agreement and significantly cutting back on the use of official time by federal employees. Focusing on “putting veterans first” is a good public relations move by the agency. But, despite the effective public relations appeal, unions that are impacted will spend considerable time and money attempting to overturn the decision. Cutting off this much funding for union activities will have a big impact on the role of unions in the agency and will be seen as a threat to their future role in the federal government.
An appeal is now pending of an initial District Court decision that overturned significant portions of the three Executive Orders previously issued by President Trump on related issues.
So, for federal employees, agencies and federal employee unions, the next few months will likely result in decisions impacting whether unions can continue to expand their influence on agency decisions and their political activities in support of elected officials that seek the support of the unions.