By William Wiley, June 26, 2018
So much has been left to interpretation in the three Executive Orders issued by The White House on May 25. That’s just the way it is when something is issued that is as significant and specific as are the changes mandated by the President. Here at FELTG, we’ve been doing a lot of thinking and responding to questions and comments from the FELTG-Nation regarding the meaning of these things. We’ve even resorted to Deep Thoughts to try to figure them out, and deep thinking is not necessarily our strongest suit. With that said, here’s where our evolving EO-interpretation is today:
Effective Date: There’s a bedrock principle in our civil society that bills become laws the moment they are signed by the President (or a Presidential veto is overridden on Capitol Hill). That protects our citizens from the retroactive application of a law to conduct that was legal prior to the law, and binds us all to the requirements of the law from the date of signing forward. The only main exception to this rule is if the law itself sets an effective date somewhere in the future. The Civil Service Reform Act of 1978 is a relevant example. Although it was signed by President Carter in October 1978, it was written so that it was not effective until 90 days later.
There’s no reason that this timing principle would not apply to an Executive Order. These three EOs were signed by the President on May 25, 2018. They have been effective since that date as there was nothing in the EOs that set a later overall date. Therefore, if you have been giving unacceptably performing employees generally more than 30 days to demonstrate whether they can perform in an acceptable manner since that date (i.e., you issued a 90-day PIP), you have violated the accountability EO.
“But, Bill. Doesn’t the EO say something about 45 days? Don’t we have until July 9 to put all of this into place?” Well, not exactly. The EO says that agencies have until July 9 to adapt their discipline and performance instructions to the requirements of the accountability EO. To my read, that doesn’t mean that agencies are not bound before then. It just gives you six weeks to put the requirements into writing.
Mandates or Objectives: I’ve heard a number of representatives on both the management and the union side say that the EOs simply lay out bargaining objectives, that there really are no guarantees that the requirements of the EOs will survive the negotiation process and become part of a collective bargaining agreement (CBA). I’ve even had a couple of interesting discussions with practitioners who take the position that the EOs mandate that nothing in the Orders abrogates current CBA provisions that are contra to the EOs; therefore, they cannot be effective immediately.
If this objectives-only approach is taken by an agency, many of the requirements of the EO may not be implemented for years, maybe never if the current CBA is not renegotiated, but is simply extended into the future. Considering the EOs’ requirements to be opening positions for an agency to take in negotiations, rather than policies to be implemented now, prevents the swift implementation of the President’s instructions.
As we’ve spoken about in our webinars analyzing the EOs (there’s still space in tomorrow’s session), in our opinion there is a defensible argument that the mandates of the EOs are effective now and need not be subjected to negotiations. It is black letter law in our business that a CBA can not contain provisions inconsistent with a law or a government-wide regulation. Almost 30 years ago, FLRA held that an EO carries the same weight as a law for the purpose of collective bargaining. See NTEU & Army, 30 FLRA 1046 (1988) (Holding that shalls were “legal” mandates).
If an agency were to take this approach, the Big Brains over in the labor relations office should be combing through the EOs looking for mandates (e.g., the shalls) and separating them from the simply desirables (e.g., the endeavors). For every mandate found, the agency should notify the union that you are immediately changing your policy to conform to a new law-like EO, and are accepting any impact and implementation proposals the union might choose to make. As the EOs say, “Nothing in this EO impairs the authority granted by law to an agency head.” By law, an agency head has the authority to implement a law without negotiating the substance of the law with the union.
Enforceability: Many of you wonderful readers have some Big Decisions to make over the next few days. What do the EOs really say? Is that comma important, or not? Do we really want to upset the union by unilaterally implementing the mandates in the three EOs? What if we resist the EOs and choose not to implement them, for whatever reasons? Who’s going to care?
Oh, I don’t know. Maybe the PRESIDENT OF THE UNITED STATES? Maybe whoever it is who heads up your agency, who works for the President? Please, oh please, invite us to the meeting in which you tell your political overlords that you advise keeping the union officials on full official time out of fear that the union might file an unfair labor practice charge if you unilaterally act to implement the EO and reduce official time use. That meeting, in comparison, will make cage fighting look like an elementary school game of dodgeball.
You probably have noticed that a number of unions have filed lawsuits to prevent the implementation of these EOs. At least one union has asked a court to issue an injunction to stop EO implementation, something courts usually do only then there is the danger of immediate irreparable harm. Well, if these EOs simply laid out bargaining objectives, issues that ultimately would be resolved through the collective bargaining process, there wouldn’t be any immediate harm, would there? Maybe our friends on the union side are onto something.
EOs aren’t like laws that once they are issued become static and open to varying interpretations. These EOs express the wishes of a single President and have his signature at the bottom of each one. If you’re confused as to what they mean, just ask the President. He has a White House Counsel who speaks for him on things legal. He has a Justice Department that implements his legal wishes. He has a Director of OPM who is supposed to understand what the President wants and then implement regulations to carry out those wishes. If you have a telephone, you don’t have to guess at the answers. Call the guy who issued the darned things and ask, “Hey, what’d you mean in that Union Time EO? Are we supposed to implement that puppy immediately or just try to bargain for those restrictions?” Just be sure to phrase your question so that he can respond in 280 characters, or fewer. That will ensure you a speedy response.
So, get busy. And cancel those plans for a big July 4th holiday vacation. If you’re an agency’s employment lawyer or Human Resources specialist, you have precious little time left to do what the President has told you to do.
Or, to tell him you’re not going to do it. Whooo, doggies; I’m going to bring my first aid kit for that meeting. [email protected]