Labor Relations and Executive Orders
Last year, President Trump issued several executive orders that impacted the federal labor and employee relations program. It was not a surprise that federal employee unions reacted with shock and indignation and quickly went to court to attempt a reversal of the Orders.
While the case is still in litigation, and may still be in litigation at the end of President Trump’s first term, the initial foray into the legal system was successful for the unions. A District Court judge in Washington, DC overturned many provisions of the Orders.
While portions of the Orders were overturned, not all of the provisions were. Moreover, the content of the Orders reflects a different approach to the federal government’s labor and employee relations system. The approach is generally more aggressive than the “union friendly” philosophy generally followed by the Obama administration.
Resolving Labor Disagreements
There is no doubt the Trump administration did not expect federal employee unions to willingly modify labor agreements to cut back on existing provisions in labor agreements. More realistically, making changes will provide plenty of work for lawyers representing both unions and agencies as agencies work to implement more restrictive labor agreements.
Since unions in the federal sector cannot strike, two things are likely to happen.
First, unions will delay as long as possible in making any changes. Negotiations in federal labor relations can often take years. The first approach will be to try and drag out negotiations until after the next election.
The second step—which may be primarily initiated by an agency that wants to put an end to very lengthy negotiations—will be going to the Federal Service Impasses Panel (FSIP) (after using the services of the Federal Mediation and Conciliation Service) for resolving the inevitable disagreements.
An agency can sometimes get to the FSIP fairly quickly if it takes an aggressive approach in negotiations. The decision that will be made by the FSIP is often unpredictable and may depend on how persuasive each party can be in arguing its case.
A new case decision has been issued by the FSIP that resolves a dispute between the National Treasury Employees Union (NTEU) and Health and Human Services (HHS).
Two of the issues, official time to be used by unions and telework provisions, are common topics in labor agreements. They are also likely to be common topics with unresolved disputes. That is the situation in this instance.
Official Time For Union Representatives
Official time was a topic of concern in the Trump Executive Orders. “Official time” means time spent by a federal employee who continues to receive full pay and benefits while representing a union.
Unions often want more time to have federal employees working on behalf of the union. Agencies often want less time as it takes an employee away from the job for which a person is employed by the federal government.
In this case, the union had enjoyed having six federal employees spending all of their time at work on “official time”—in effect, they were spending all of their time on union activities while being paid and receiving full benefits of being a federal employee.
The union was willing to reduce the number of employees on full official time and proposed 80% official time for 4 stewards in 2 of the Union’s busiest local chapters. Additional time for others could be granted when using it was “reasonable and necessary.”
As is often the case, the FSIP did not fully adopt either position but generally gave the agency more of what it was seeking. It did not go along with giving four employees full time to work as a union representative. Instead, it concluded that time would be granted that was “reasonable, necessary and in the public interest” when the agency and union agreed a request to use time should be granted.
In effect, while the agency did not get all of the restrictions it was seeking, it did get much more leeway to grant or deny time than under the previous labor agreement. On balance, it was clearly a good decision for the agency.
Dispute on Telework Provisions
Use of telework by bargaining unit employees was apparently a major point of contention. The agency proposed contract language establishing an “expectation that employees report to their worksite 4 days per week….”
The agency also wanted a contract provision that had requirements of work requirements as a condition or being on a telework agreement, such as requiring an employee to have had at least a rating of “fully successful” on their last performance rating.
The union wanted to keep the existing language in the contract. It argued that when an agency lacks sole discretion to take personnel actions, FLRA precedent requires the agency to negotiate. The agency’s proposal granting individual supervisors sole authority to terminate agreements would be contrary to this. It also argued that thousands of employees work 3-5 days of telework per week with no demonstrated reason to change the system.
The FSIP came up with this required contract language:
The Agency will not establish a minimum number of days per week for employees with a telework agreement to report to their official worksite. However, employees should expect to report to the official worksite and duty station a minimum of four (4) days per week (for employees on a compressed work schedule, the employee’s regular day(s) off will count as a day away from the official worksite for the purpose of this language).
In addition, the Panel eliminated the contract proposal sought by the agency to restrict employees from filing a grievance regarding telework.
In effect, the agency was successful in changing the agreement to largely reflect the changes the agency wanted to have in the agreement while the union (and employees) retained the ability to file grievances on the subject.
Impact on Future Contract Disputes
The FSIP does not issue decisions that are precedential. In other words, another dispute on the same topics that may be brought to the Panel will not necessarily lead to the same result. The arguments may be different, there may be differences in the language and the circumstances may be different in other cases.
Nevertheless, the decision, in this case, may encourage agencies that have an interest in cutting back on procedures or situations that have restricted the agency’s ability to operate effectively. The FSIP has demonstrated it is receptive to arguments that labor agreements are not automatically resolved by expanding union or employee rights.
No doubt, the decision will play well in the Trump administration.