Feeling the Squeeze of Executive Orders

An agency has asked the FLRA for guidance on implementing President Trump’s Executive Orders impacting federal employee unions.

The Department of Agriculture (USDA) has asked the Federal Labor Relations Authority (FLRA) for guidance on a labor relations issue now impacting a number of federal agencies.

In response to the request for guidance, the FLRA is asking for comments from interested parties on these issues:

  1. When a party requests to renegotiate an expiring agreement that contains a provision stating that the agreement remains in force until a new agreement is reached, an agency head may review the legality of the expiring agreement as early as Section 7114(c) of the Statute would allow the agency head to do so if the expiring agreement were automatically renewed; and
  2. An expiring agreement that remains in force until the parties reach a new agreement is effectively renewed automatically every day, so, for as long as the expiring agreement continues in force during renegotiations, a new agency-head-review period begins each day.

Why Are These Questions Arising?

President Trump issued three executive orders in 2018 on labor and employee relations issues that impact federal agencies. After a decision from a Court of Appeals holding that agencies are free to implement the new Orders, agencies are implementing the new requirements as outlined in these Orders.

A number of federal labor agreements contain a provision that an existing contract remains in effect until a new agreement is reached between the agency and the union that represents some employees in that agency.

Federal agencies are starting to implement new requirements outlined in the Executive Orders that may conflict with current agreements. For example, there are more restrictions on official time that are now being imposed and new provisions to charge unions a rental for the use of government office space and equipment.

The unions would prefer current agreements stay in place to avoid having the agencies impose the new restrictions. The new Executive Orders will put financial pressure on the unions because they are likely to now be using office space and office equipment provided by agencies at no charge to the union.

From the unions’ perspective, the longer they can delay a new agreement from going into effect, the longer they will have a more favorable financial balance sheet. In effect, if they can prevent agencies from enforcing the new Executive Order requirements, they will have more money to spend and more people working on behalf of the union while the government pays for salary and benefits for employees on “official time”.

Implications of a Policy Statement from the FLRA

The Department of Agriculture is asking the FLRA for a policy statement to possibly avoid litigating allegations that unfair labor practices have occurred when an agency implements the new Executive Order requirements.

If a policy statement is issued, the Department of Agriculture (and many other agencies) will know how the FLRA would look at a case where an agency has implemented the new Executive Order requirements as soon as an existing labor agreement expires.

In other words, can an agency implement the Executive Orders as soon as the current contract expires or does it have to wait until a new agreement goes into effect?

If the agency must wait until a new agreement is implemented, federal employee unions are hoping enough time has passed that a new administration has been elected and that a new president would rescind the executive orders issued by President Trump.

There is little doubt that contract negotiations could be delayed by the union for a number of months. If this is done, the union could avoid facing additional expenses as a result of the requirements in the Executive Orders.

A statement issued by the American Federation of Government Employees (AFGE) shortly after the request for FLRA guidance was made reflects the union’s position and its desire to keep the existing contract in place as long as possible:

AFGE is surprised and disappointed that the USDA would make this request. It is not consistent with the law or the facts. We are already bargaining a new contract for USDA food safety inspectors. The current contract, which the USDA agreed to, clearly states that the existing agreement will remain in force until a new agreement is signed. There is no valid reason to deviate from what the law and contract require. AFGE does not support this request nor does AFGE support any attempt by USDA to evade its legal and contractual obligations.

Requirements for Submitting Comments

The FLRA will consider written comments received on or before February 24, 2020, by email, courier or postal mail, or hand delivery. Further filing instructions may be found in the Federal Register notice. Any interested party requiring additional information on the FLRA’s requirements can contact Emily Sloop, Chief, Case Intake and Publication for the FLRA at (202) 218-7740.

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