The New Executive Orders and Labor Relations

By William Wiley, June 5, 2018

As most of our wonderful readers know by now, on May 25 President Trump issued three executive orders to shake up the civil service. One of them primarily was focused on employee accountability for performance and misconduct. As we wrote in another article, those changes were significant, but well within the range of flexibilities already in the system, and already employed by the more progressive agencies for many years.

The other two executive orders were designed to change the world of labor relations in federal agencies. Although the EOs have been characterized in the media as taking away the “rights” of unionized employees, they actually don’t do that. Instead, they primarily lay out a framework for organizing management proposals once collective bargaining commences. Unions still retain their basic rights under law; the executive orders direct where management is supposed to take a contrary position consistent with an “effective and efficient Government.”

Here are the primary changes:

• “Official time” is now called “taxpayer-funded union time.”
• Agencies should eliminate unrestricted grants of taxpayer-funded union time and instead require employees to obtain specific authorization before using it.
• Agencies should strive for a negotiated union time rate of 1 hour or less (here are FELTG, we don’t know what this means).
• Employees may not engage in lobbying activities during official time.
• Union reps must work 75% of the year in their regular jobs.
• No free use of agency facilities or property by the union.
• No reimbursement for expenses incurred performing union activities.
• No official time to pursue union grievances.
• OK to use official time to prepare grievances brought by an employee or to appear as a witness.
• Agencies that form part of an effective and efficient Government should not take more than a year to renegotiate CBAs.
• The parties should adhere to negotiating period of 6 weeks or less to achieve ground rules, and a negotiating period of between 4 and 6 months for a term CBA under those ground rules.
• The agency head shall notify the President of any negotiations that last longer than 9 months.
• A Labor Relations Group shall consist of the OPM Director and staff and representatives of participating agencies determined by their agency head in consultation with OPM.
• The OPM Director shall chair the Labor Relations Group and provide administrative support for the Labor Relations Group.
• Agencies with at least 1,000 employees represented by a collective bargaining representative shall participate in the Labor Relations Group. Responsibilities:
  • Gathering information to support agency negotiating efforts and creating an inventory of language on significant subjects of bargaining that have relevance to more than one agency and that have been proposed for inclusion in at least one term CBA.
  • Developing model ground rules for negotiations that, if implemented, would minimize delay and set reasonable limits for good-faith negotiations.
  • Analyzing provisions of term CBAs on subjects of bargaining that have relevance to more than one agency, particularly those that may infringe on, or otherwise affect, reserved management rights.
• The analysis should include an assessment of CBA provisions that cover comparable subjects, without infringing on reserved management rights.
• The analysis should also assess the consequences of such CBA provisions on information sharing and analysis, including significant proposals and counter-proposals offered in bargaining.
  • Establishing ongoing communications among agencies engaging with the same labor organizations, and
  • Assisting the OPM Director in developing Government-wide approaches to bargaining issues that advance the policies set forth in the order.
• This one is HUGE: Management should endeavor to bargain with the union so that employees cannot grieve removals to an arbitrator.

There are a lot of words and terms put forth as mandatory, but in reality, have squishy meaning in application:

• Interpreted in a manner consistent with the requirement of an effective and efficient Government
• Reasonable time
• Promptly
• Minimize delay
• Timely manner
• Expeditiously
• Reasonable, necessary, and in the public interest

Also, there are time limits for implementation, reports to be made, and authorities assigned. You’ll have to read the full EOs to get the details and the flavor of what the White House is directing to be done. Be that as it may, if you are a management official the above are your goals and requirements for your collective bargaining relationship with your union, so you’d better get hopping if you want this to be done in a “timely manner.”

Here at FELTG, we’ve now given you two summaries relative to the three new EOs. In our third piece regarding these significant changes directed by the White House, we’ll discuss the legality of the requirements of the EOs (we’ve already spotted one illegal provision) and the enforceability of the requirements. We’ll try to get around to that just as soon as our respective heads stop spinning from trying to digest everything that’s going on here. It’s one thing to put out orders; it’s another to be able to enforce those orders (those of you with children know exactly of what I speak).

Some years, our business of civil service law is relatively boring. This is not one of them. Hang in there. We’re with you every step of the way. Wiley@FELTG.com