By William Wiley, June 12, 2018

As most everybody knows by now, last month President Trump issued three Executive Orders aimed at the world of federal civil servants. Here at FELTG, we’ve already published an article on the effect these EOs have on holding employees accountable for poor performance and misconduct. We’ve also described for you the new limitations placed on collective bargaining; changes that reduce the union’s use of official time, the scope of grievance procedures, and the options management can offer to the union during negotiations. Yes, it’s a new world out there these days, whether it’s a “brave” new world is yet to be determined.

In this article, we address a couple of issues related to these EOs:

Legality

At least two federal unions have filed suits in federal court to stop the implementation of the EOs. Although we’ve not seen all the pleadings, we have read what has been reported in the media as the rationales for the objections. With all due respect to our friends and the smart lawyers who are supporting those suits, we don’t see a lot of merit to them. For a lawsuit to be viable, there must be evidence of a breach of a law or contractual agreement. We’ve looked hard, but we just don’t see any of that. For example, one suit was reported as claiming that the EOs violated 5 USC Chapter 43 (performance-based removals) and cited to language alleged to come from that law. Yet when we read the cited reference to the statute, it does not say what the suit claims it says. If these suits are to be successful, it’s going to take some hard work and creative advocacy to get there.

Other arguments advanced by the suits make arguments that do not make much sense. For example, because the law does not set a maximum period of time for a poor performer to demonstrate acceptable performance, it is illegal for the President to set a time limit. Or, because the law provides that official time for union officials to perform union duties can be negotiated, it is illegal for the President to limit how much time can be negotiated. I’m never the smartest lawyer in a room, but I have not seen much so far to support a conclusion that the EOs are illegal.

So far, the unions haven’t filed for a temporary restraining order to prohibit implementation of the EOs. One might think they would do that if they felt they could argue significant irreparable harm.

The more practical front-line issue has to do with the requirements the EOs place on collective bargaining. Several “experts” have been quoted in the media as describing the requirements of the EOs as bargaining “objectives” rather than as Presidential “mandates.” Following that logic, the President can require management bargainers not to provide free office space to unions through collective bargaining, but practically speaking, it will be up to the FMCS/FSIP stages of negotiation as to what will eventually be the language of the CBA. Those who think this way are betting on the actions of FSIP to decide what the federal workplace should look like, not for the President to make those decisions through executive fiat.

Well, here at FELTG, we are placing our bets a bit differently from those experts who represent unions and employees. Here are some well-established legal principles that have been around for 30 years or so that guide collective bargaining in the federal civil service:

  1. A CBA cannot contain a provision inconsistent with federal law. If a union proposes contract language that would provide employees a benefit inconsistent with law, the management response should be, “non-negotiable.” Even if the agency wanted to negotiate something different from law, it cannot do it. It is beyond debate that CBAs cannot be inconsistent with law. 5 USC 7117.
  2. When laws change during the existing term of a CBA, the agency is bound immediately by that law. It may not bargain the law. It must adhere to the new law immediately, with no obligation to refrain from implementing the law until related impact and implementation bargaining is completed. (If these concepts are foreign to you, come to our FLRA Law Week seminar, October 15-19 in Washington, DC. They are as basic as the Earth.)
  3. Many years ago, FLRA ruled that a Presidential Executive Order was equivalent to a law for collective bargaining purposes. NFFE and Army, 30 FLRA 1046 (1988). Although not a heavily litigated issue, this case – unless it is overturned – will be FLRA’s guiding light when it is called upon to adjudicate ULPs related to these new EOs. Although FLRA members cannot be removed from office during the five-year term they are serving, with these EOs they have been publicly put on notice of how the President (the guy who hired them) wants to see collective bargaining work in the civil service.

If we accept that an EO is equivalent to a law, we need to review these EOs closely to parse out what they REQUIRE as compared to what these EOs SUGGEST; the old “shall” vs. “should” analysis. When we do that, here’s a sample of what we come up with as EO mandates:

  • Performance ratings, incentive awards, and recruitment/retention/relocation payments are to be excluded from CBA grievance procedures.
  • Progressive discipline is not required prior to firing an employee.
  • Management must be free to use either Chapter 75 or Chapter 43 to fire a non-performer (If you don’t know what these are COME TO OUR SEMINARS! Ignorance is OK; stupidity is not.).
  • Generally, performance demonstration periods (i.e., PIPs) are to be no longer than 30 days.
  • Clean record agreements can no longer be used to settle cases.
  • Internal agency discipline and performance policies have to be rewritten to conform to the EOs by July 10.
  • No free office space for the union.
  • This is an odd one: Agencies are to “endeavor to exclude” removals from CBA grievance procedures. If the EO had just said “exclude,” that’s an easy-to-apply mandate. However, when it says “endeavor” to exclude, does that mean the agency just has to try – that the outcome of trying is left up to some other process; e.g., collective bargaining? Who knows?
  • Agencies must renegotiate any CBAs in conflict with these EOs.

There’s a bit more about filing reports and acting quickly in response to OPM regulatory changes. There’s also a collection of “shoulds,” things that agencies ought to do, but are not required to do; e.g., limit the notice period of a proposed removal to the statutory minimum of 30 days. When it comes to mandatory collective bargaining to bring existing CBAs into conformance with these new EOs that are equivalent to law, it’s the “shalls” that drive the scope and timing of bargaining.

Most of this has to be implemented by July 9. So, what should you be doing TODAY? Well, you need to approach your to-dos from two different perspectives:

Non-bargaining Unit Changes – All of your discipline and performance instructions should be reviewed in light of the mandates listed above. For example, does your agency policy say that PIPs can be any reasonable length? It should now be rewritten to say that generally, demonstration periods (not improvement periods) are to be no more than 30 days. This is a mandate in the EOs.

What about the non-mandatory shoulds in the Eos? Will you rewrite your discipline instruction to state that, for example, the 30-day notice period for removals will not be extended beyond 30 days? What happens to you if you don’t adopt the shoulds as policy for your agency? Oh, I don’t know. Maybe ask your Secretary how he would like to tell President Trump that you’re rejecting the EO’s suggestions on how these policies are to read. And if you’re going to do that, may we come along to watch? We’d really like to see how the President takes that.

Bargaining Unit Changes – Even though a number of our friends from the union side have opined that these EOs contain, at most, bargaining positions, here at FELTG we think that may not be correct. If an EO carries the weight of law relative to collective bargaining (see NFFE and Army, above), and if agencies must act promptly to bring CBAs into conformance with new laws if they are in conflict, then one might conclude that these EO mandates are now effective and need NOT be bargained. If this is correct, agencies should be amending their CBAs today and inviting unions to initiate I & I bargaining relative to negotiable parts of these changes.

Whooooo, doggies. Is this going to be exciting, or what? Better put a cover over that fan because there’s going to be a lot hitting it.

And we’re not done.

The “Independent” Agencies

If you’re just a regular old agency official, you have your Presidential marching orders. Now get out there and rewrite those instructions and bargain with the unions, as necessary.

But what if you’re senior management in an independent (oversight) agency? We’ve already talked a bit about FLRA’s role and precedence; how about the others?

FSIP – Assuming that parts of these EOs cannot be unilaterally implemented by management and will have to be negotiated with the union, any bargaining impasse that results will have to be resolved by the seven members of the Federal Service Impasses Panel. The Panel members are political appointees, having been appointed by President Trump, and who serve at his pleasure. If they are considering two counter-proposals, one of which embodies the intent of the President’s EOs and the other which does not, how do you think they will rule? Yep, that’s our prediction, as well.

MSPB – Some of the things that the EOs are trying to “fix” are prior declarations in rulings of the US Merit Systems Protection Board. For example, it was in 2010 that MSPB that came up with the stupid Terrible Trilogy comparator employee craziness that said that discipline had to be consistent throughout an agency, not just within the chain of command invoking the discipline. The EOs say that this is no longer the rule, that lesser discipline given to a comparator does not prohibit the removal of a different employee. Unlike the members of FSIP, the Board members do NOT serve at the will of the President. Once sworn in, they can be removed only for inefficiency, neglect of duty, or malfeasance in office, 5 USC 1202(d). Will they conform their decisions to the principles espoused in the EOs? Will the President require that potential nominees promise to do that or he will not nominate them? Will the Senate confirm nominees who have promised the President to conform their decisions to his orders?

Whoooooo, doggies.

So many questions, so many opinions. We admit to not knowing a lot of the answers here at FELTG, but we swear on a stack of CFRs, we will do the best we can to keep you up on changes, suggesting strategies and options for you to consider, and maybe even predicting a few things that eventually will come true. So, pay your FELTG dues, renew your subscription to our newsletter, and buckle your seatbelts. The next several months are definitely going to be a bumpy ride. Wiley@FELTG.com

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