With approval from a federal court to lift an injunction on three Executive Orders issued by President Trump that impact the federal workforce, agencies are now starting the process of implementing these orders.
Probably the Orders that will be generating the most litigation will result from requirements that result in squeezing the finances of federal employee unions.
How the EO Will Squeeze Unions
Here is one of the items that will have an impact on federal employee unions when implemented:
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.
Defining Reasonable and Efficient Taxpayer-Funded Union Time
The Order dictates that an agreement that provides union time to exceed a time rate in excess of one hour will not ordinarily be considered “effective and efficient” or “reasonable, necessary and in the public interest.”
- New reporting requirements are included in the Order if an agency agrees to authorize taxpayer-funded union time that would cause the union time rate to exceed one hour.
- Also, employees are expected to spend at least three-quarters of their time during a fiscal year performing their function 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.
Agencies are now starting to implement the provisions of this Executive Order. We can anticipate that unions will seek redress through a variety of legal options including filing an unfair labor practice, filing grievances under the terms of an applicable collective bargaining agreement, and seeking relief from one court or another to delay and restrict agency options.
Ultimately, the goal of unions will be to try and delay implementation until 2021 by pursuing these tactics. We obviously do not know who will be sworn in as president at that time. The expectation or hope of the unions is that the next president will be a Democrat and the Executive Orders will be rescinded. That is a reasonable expectation but, should that expectation not become reality, the labor relations landscape is likely to be considerably different as the delays are unlikely to last through a second term.
On October 4, 2018, OPM advised agencies that its previous guidance on implementing the labor relations Executive Order was now in effect.
Implementing EO When Facing Delaying Tactics
Executive Order 13836 is entitled “Developing Efficient, Effective, and Cost-Reducing Approaches to Federal Sector Collective Bargaining”. It sets out requirements for implementing the Executive Order and agencies such as the Department of Veterans Affairs are now setting out when they will start charging unions rent for office space and putting into place the new restrictions on use of “official time” for union representatives who are also being paid the regular salary and benefits for federal employees while representing a union.
The OPM guidance tells agencies:
EOs possess the force of government-wide rules. Therefore, provisions of the EO are effective on the date the CBA expires or rolls over, whether or not the CBA is reopened for negotiations. Nonetheless, agencies are encouraged to consult with legal counsel and offices of labor relations on questions relating to appropriate implementation of the EO.
As an Executive Order is a government-wide rule or regulation within the meaning of the federal labor relations statute, OPM is directing agencies as follows:
[A]gencies already in negotiations should devote the necessary time and resources to bring these negotiations to an appropriate conclusion consistent with the policies and objectives of this EO and their obligations to negotiate in good faith. To achieve this, the EO calls on agencies to set reasonable time limits for good-faith negotiations, to call for Federal Mediation and Conciliation Service mediation of disputed issues not resolved within reasonable time limits, and, as appropriate, to promptly bring remaining issues to the Federal Service Impasses Panel for resolution.
OPM is also advising agencies that if a union tries to delay negotiations on these issues that the agency should consider “implement(ing) a proposed change to conditions of employment.” In effect, it is advising agencies that it can go ahead and implement the proposed change when facing delaying tactics that amount to a “failure to comply with the duty to negotiate in good faith….”
How this will play out in practice remains to be seen. Some agencies are moving out aggressively. Others are keeping a low profile. Publicity campaigns by unions are being implemented to increase political pressure on agencies and litigation is underway in various forums.