Agencies to Implement Executive Orders

OPM is advising agencies to move out quickly on implementing President Trump’s Executive Orders.

An injunction holding up implementation of President Trump’s new Executive Orders has been lifted and the federal government is now moving out to implement them. One of the new Executive Orders was designed to cut down the amount of time used by federal employees working on behalf of a union and was issued by President Trump on May 25, 2018.

The Office of Personnel Management (OPM) quickly moved out and, on October 4th, advised agencies to implement the labor relations Executive Orders. The OPM guidance also rescinded its previous notices to agencies  “Relating to Enjoinment of Certain Provisions of Executive Orders….”

New OPM Guidance to Agencies

OPM is already telling agencies that the “OPM guidance, originally issued on July 5, 2018 pursuant to the signing of the EOs is now effective….” The labor relations guidance to agencies concerns the Executive Order entitled Ensuring Accountability and Efficiency for Union “Official Time”.

Here is a summary of that labor relations guidance to agencies.

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 or regulation. 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 with the union has been reopened for negotiations.

How Much “Official Time” is Too Much?

The Trump 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 what is considered reasonable by the Executive Order. 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

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 legal restrictions.

The new OPM guidance just distributed to agencies on October 4 notes “OPM plans to provide additional guidance further discussing the full reinstatement of the EOs….” This is likely to happen in the near future.

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 has advised 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.”

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.

Delay as Long as Possible

Unions will continue to work to delay implementing the Executive Orders and will try to delay negotiating on the changes as long as possible. No doubt, this means negotiability appeals will be filed with the Federal Labor Relations Authority (FLRA), attempts will be made to negotiate on ground rules for a long time, and unions will delay going to the Federal Service Impasses Panel (FSIP) for a final resolution.

The ultimate goal will be to delay implementation until the national elections in November 2020 when, if their hopes pan out, a Democrat will be elected as president with the support of federal employee unions and the Executive Orders will be rescinded.

About the Author

Ralph Smith has several decades of experience working with federal human resources issues. He has written extensively on a full range of human resources topics in books and newsletters and is a co-founder of two companies and several newsletters on federal human resources. Follow Ralph on Twitter: @RalphSmith47