In the last presidential election, federal employee unions were quick to endorse Hillary Clinton as their candidate of choice for president. The endorsements are slower in coming this time around, probably while waiting to see which candidates fare better in the primaries and promise them the most support if elected.
As federal employee unions watch the progress of the national election cycle and try to determine which Democrats will receive their endorsements, money and time, the Trump administration is releasing proposals that will occupy some of the unions’ time and energy.
Legal Basis for This Action
Most recently, in the Federal Register is a notice that reads, in part:
The Secretary of Defense (Secretary) is delegated authority under 5 U.S.C. 7103(b)(1) and 7103(b)(2) to issue orders excluding Department of Defense agencies or subdivisions thereof from Federal Service Labor-Management Relations Statute coverage. The Secretary is authorized to further delegate this authority to any official of the Department of Defense appointed by the President with the advice and consent of the Senate.
The notice is based on authority given to the president in the federal labor relations statute. The relevant part reads:
(b)(1) The President may issue an order excluding any agency or subdivision thereof from coverage under this chapter if the President determines that—
(A) the agency or subdivision has as a primary function intelligence, counterintelligence, investigative, or national security work, and
(B) the provisions of this chapter cannot be applied to that agency or subdivision in a manner consistent with national security requirements and considerations.https://www.govinfo.gov/content/pkg/USCODE-2018-title5/html/USCODE-2018-title5-partIII-subpartF-chap71-subchapI-sec7103.htm
This authority has been around since 1978. If the Secretary of Defense decided that most or all of DoD employees are engaged in national security work, about 400,000 federal employees would potentially no longer be represented by a union. The possible financial implications of such a move on the unions would be significant.
Obviously, the unions have noticed and have reacted with vigor to the proposal. “This administration will not stop until it takes away all workers’ rights to form and join a union, and we will not stop doing everything we can to prevent that from happening,” according to an AFGE official.
Military personnel are not represented by a union so the notice would only apply to civilian employees.
Rationale for Removing DoD Unions
The rationale for the move is national security. The Federal Register notice states:
When new missions emerge or existing ones evolve, the Department of Defense requires maximum flexibility to respond to threats to carry out its mission of protecting the American people. This flexibility requires that military and civilian leadership manage their organizations to cultivate a lethal, agile force adaptive to new technologies and posture changes. Where collective bargaining is incompatible with these organizations’ missions, the Department of Defense should not be forced to sacrifice its national security mission and, instead, seek relief through third parties and administrative fora.
AFGE states in a response that “In fact, the presence of unions in DoD has actually benefited national security.”
Effort to Create More Efficient Government
The latest administration action is at least indirectly related to another effort cited as an effort to create a more efficient government as outlined in a budget proposal from the Office of Personnel Management (OPM).
This proposal would eliminate the current requirement to prevent implementing any rule or regulation that conflicts with a “collective bargaining agreement if that agreement was in effect before the date the rule or regulation was prescribed.”
This proposed change outlined by OPM is directed at the controversy regarding several Executive Orders issued by President Trump that would impact the federal workforce by changing procedures to make it easier to fire a federal employee and creating new restrictions on giving federal employees time away from their federal job to represent a federal employee union.
Federal unions are trying to delay the implementation of the orders in the courts and other administrative procedures. The delays are largely possible as a result of the current requirement that government-wide rules and regulations are delayed when conflicting with a labor contract.
The Trump administration has clearly been studying the federal labor relations system and is receiving advice from experts on how to restrict the power and influence of federal employee unions.
The issuance of several Executive Orders created outrage from the unions and, to date, federal courts have approved implementing these orders. The Executive Orders, among other things, would provide less financial support from government coffers. There will also be fewer employees who have worked on representing unions in the workplace while receiving their federal employee salary and benefits—a practice known as using “official time”.
The Federal Register notice does not require the Secretary of Defense to remove federal employees from union representation. Presumably, the agency will consider national security interests and how the presence of unions in the various parts of DoD impacts “expedient and efficient decisionmaking” and if by having unions the agency is “forced to sacrifice its national security mission and, instead, seek relief through third parties and administrative fora.”
The notice also requires DoD to publish the determination to exclude employees from union representation in the Federal Register.
We are still a few months away from national elections in November. This should make working in the federal government interesting as the election date approaches.