By William Wiley, July 12, 2018

To me, Federal unions are like salt. A bit is good; too much spoils the whole dish.

President Trump was probably thinking about that when he issued his two union-limiting Executive Orders recently. He didn’t issue an EO banning union activity in any large segments of federal agencies as some would argue he could do by using his statutory authority at 5 USC 7103(b)(1). He didn’t say that unions do bad things. Instead, he primarily said that union activity costs too much.

If you understand collective bargaining in the civil service, you realize that President Trump was being critical of how agency management in the past had been, in his opinion, too generous with unions when negotiating working conditions. For example, his EOs restrict the amount of time an individual employee can devote to union activities while being paid his regular salary (a concept known as “official time,” or in the language of the EO, “taxpayer-funded union time”). No doubt he was responding to the situation a number of agencies have where some federal employees are paid their regular salaries for performing union work 100% of the time. Under the new EOs, individual employees serving as union officials will be limited to no more than 25% of their paid work time being official paid union time. That means that 75% of the year, the employee will have to perform the job he was hired to do, if he wants to get paid.

So how did we get into a situation in which some federal employees are paid their regular salaries for doing union work 100% of the time? Was there a mandate from Congress that this be done? Did the Federal Labor Relations Authority somehow require that this occur? Do the union negotiators have some sort of magical power by which they gave themselves 100% official time?

Nope. Those things didn’t happen. The way that some union officials got the entitlement to get paid their regular government salary for doing full-time union work was that agency management negotiators agreed to it through collective bargaining. Whether or not we agree with the President’s position that individual employees should be performing their regular government duties at least 75% of the time, we have to acknowledge that it’s not solely the unions’ fault that the current situation occurred. Agency management negotiators who signed off on collective bargaining agreements that allow employees to use large amounts of official time are as much to blame as anyone. The new EOs are an attempt to roll back the previous generous management grants of official time to something the President thinks is more reasonable.

There has been a lot in the press about how the EOs’ limiting of official time violates the law and is fundamentally unfair. Unions do important things: e.g., protect employee rights, such as the right to be free of civil rights discrimination and the right to obtain employee benefits like child care facilities. Unions represent the interests of employees in the many workplace decisions that would otherwise be solely left to management to decide, such as flextime rules. Unions need official time for their representatives to do these things.

Well, not according to Congress. When the Civil Service Reform Act of 1978 was drafted, the bill indeed did mandate official time for some union activities, specifically bargaining and interacting with FLRA. 5 USC 7131. However, it specifically DID NOT mandate official time for everything else that union officials need to do. And those “other” activities take up the bulk of official time used today by union officials. Instead, it left the amount of official time for these activities up to the collective bargaining process, to a mutual agreement between union and management negotiators as to what is “reasonable and necessary” official time. One could argue that if these other duties were so important and fundamental to a union’s right to exist, Congress would have mandated that a specific amount of official time be provided to perform those duties. It did not. Therefore, the President’s actions designed to limit official time cannot be said to completely abrogate a union’s ability to provide services to bargaining unit employees, whether we agree with those limits or not.

It’s all about the $$$. Union officials are free under the EOs to perform all the duties they now perform on official time; they just don’t all get paid for all of that time. If the President had issued orders to prohibit union representation of BU employees, we would then have an illegal action. Instead, under the EOs, union officials can still represent. They can be paid for part of that time by the agency; otherwise they must do so after hours or on annual leave or LWOP if they can cut a deal with the agency to use leave for that purpose. In addition, significant time for representing employees must now be spread out among more than one union official. For example, instead of one union official spending 100% of her workday performing union work, she must now spend no more than 25% of her work life on union activities, either on leave or official time. The remainder of union work to be performed during the workday must now be spread among other union officials, all of which must perform their regular government duties at least 75% of the time.

The President is spreading the salt among several individuals. You and I may disagree that this is how unions should be allowed to use official time, or you may think that it is unreasonable to require individuals to either cut short the services they provide as union representatives or provide services on their own time. But our disagreement does not make the EOs unlawful. There are a lot of legal ways to approach the process of collective bargaining. The President has told us how he thinks it should be done. Wiley@FELTG.com 

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