I’m not a fan of much of anything from the previous administration but, as it relates to union representatives, change that. On the issue of federal employees who are union representatives (as they are federal employees first and foremost) not performing any work for their agency because they are always on official time, they may have found a nugget that’s worth examining.
Any discussion of union representatives and official time should start with the law that provides official time for union representation, the Federal Services Labor Management Relations Statute. In the Statute at § 7131: Official Time, it states:
(a) Any employee representing an exclusive representative in the negotiation of a collective bargaining agreement under this chapter shall be authorized official time for such purposes, including attendance at impasse proceeding, during the time the employee otherwise would be in a duty status. The number of employees for whom official time is authorized under this subsection shall not exceed the number of individuals designated as representing the agency for such purposes.
(b) Any activities performed by any employee relating to the internal business of a labor organization (including the solicitation of membership, elections of labor organization officials, and collection of dues) shall be performed during the time the employee is in a nonduty status.
(c) Except as provided in subsection (a) of this section, the Authority shall determine whether any employee participating for, or on behalf of, a labor organization in any phase of proceedings before the Authority shall be authorized official time for such purpose during the time the employee otherwise would be in a duty status.
(d) Except as provided in the preceding subsections of this section–
(1) any employee representing an exclusive representative, or
(2) in connection with any other matter covered by this chapter, any employee in an appropriate unit represented by an exclusive representative, shall be granted official time in any amount the agency and the exclusive representative involved agree to be reasonable, necessary, and in the public interest.
For years, managers, especially those in highly unionized environments, questioned why union representatives get so much official time that some of their employees don’t carry out any of the work they were hired to perform. Later in this article, we’ll discuss a couple of reasons why this happens and how it can be addressed.
To be fair, most employee-union representatives still perform the work for their agencies that they were hired to perform and are as effective and dedicated as employees who are not union representatives. That said, there is a subset of those on 100% official time who may not have done any work, some for several years.
Additionally, if you look at the reports all unions have to file with the U.S. Department of Labor (e.g. Form LM-3 Labor Organization Annual Report), some of the employee-union representatives not only receive compensation from their agencies, because official time is a release from performing official duties without loss of pay or leave, but they also receive compensation from their union.
I’ll leave it to others to determine if there are some sort of dual compensation or conflict of interest issues. While the Statute says labor organizations and collective bargaining are in the public interest, one might query whether being compensated by the government and a labor organization safeguards the public interest or contributes to the effective conduct of public business.
This is where the “blind squirrel” may have found its nut. In May 2018, the previous administration issued Executive Order (E.O.) 13837, which among other things, prohibited the use of official time for certain activities, and more pertinent for this article, required employees to spend at least 75% of their paid time, measured each fiscal year, performing agency business or attending necessary agency training, in order to develop and maintain the skills necessary to perform their agency duties efficiently and effectively.
Most of the non-federal employee taxpayers I’ve talked to, once they stopped questioning why we have unions in the federal government at all, were dismayed at the thought of an employee not performing their job at all while still getting paid their full salary.
Based on the official time report from OPM (Official Time Usage in the Federal Government 2016), total official time hours increased every year of the report from 2010-2016.
In the 2019 report (Taxpayer-Funded Union Time Usage in the Federal Government), which was the first report published after the implementation of E.O. 13837, the report identified a 28.26 percent reduction in official time hours compared to the FY 2016 report. Additionally, while the cost of official time decreased by 23.83 percent, the estimated payroll cost in the 2019 report was still $134,987,041. E.O. 13837 was rescinded in January 2021.
Why is 100% Official Time Granted to Union Representatives?
Earlier, I mentioned that I would discuss a couple of reasons why union representatives are granted 100% official time and how to address the issue.
The first reason is the collective bargaining agreements, some of which have been around for a long time.
I don’t want it to sound overly simplistic, because it’s not, but agency representatives need to renegotiate the agreements and not agree to 100% official time at the bargaining table. To add to the complexity of this issue, even when agencies renegotiated agreements consistent with E.O. 13837, those agreements were undone by the current administration’s requirements under E.O. 14003.
The Statute itself only guarantees official time during negotiations and for proceedings before the Authority. That’s it. All of the other grants of official time including preparation for negotiation, grievances, time to file unfair labor practice charges, EEO complaints, formal and Weingarten meetings, etc., are all subject to negotiations. By agreeing to a multitude of non-statutorily required grants of official time, agencies put themselves on the defensive when discussing whether 100% official time is warranted.
Over the years, when I’ve asked management representatives why their agreements included 100% official time, the predominant answer was, “Because we want to have a good relationship with our union” and giving them 100% official time makes it more likely to happen.
This type of soft bargaining strategy avoids conflict and may lead to quick results but, in the long run, may also lead to more work for management advocates and misguided or ill-advised agreements. More importantly, if your relationship with your union hinges on agreeing to 100% official time, I’d question if you can have a truly functional relationship at all.
The second reason is the Federal Services Impasses Panel (Panel). The Panel should stop ordering 100% official time, even if it’s in the current agreement being renegotiated. That’s not to say that employee union representatives shouldn’t be afforded any official time to represent employees.
After defending management actions for a quarter of a century, employees need effective representation. That said, I find it hard to imagine how paying an employee-union representative full salary and receiving no work in return for the term of the agreement (usually at least three years), results in an effective and efficient government.
I would offer that based on the efficient and effective government standard set forth in the Statute, any proposal to grant 100% official time, without regard to whether it was in a prior agreement, would require the Panel to modify its general practice of having the party that proposed the change justify why a change is warranted. By doing so, the Panel would have the union justify how the proposal or continuation of the prior agreement that has an employee not performing any work is consistent with an efficient and effective government.
Maybe I’m somewhat naive but, the idea that an employee should fulfill the duties of the job they were hired to do, most of the time, seems reasonable.
Again, I’m no fan of the prior administration or its policies but, maybe, just maybe, for this one issue, they provided food for thought.
