Will Executive Orders Change Collective Bargaining?

Last week I wrote about the president’s new Executive Order Promoting Accountability and Streamlining Removal Procedures Consistent with Merit System Principles. The president also issued two additional executive orders:

Ensuring Transparency, Accountability, and Efficiency in Taxpayer Funded Union Time Use

Developing Efficient, Effective, and Cost-Reducing Approaches to Federal Sector Collective Bargaining

These two orders are focused on collective bargaining and union use of official time. I am covering them together because both are focused on the institutional rights of unions and how the federal government approaches its dealings with them.

Any look at official time has to go back to the beginning of federal collective bargaining. In January 1962, President John F. Kennedy issued Executive Order 10988 — Employee-Management Cooperation in the Federal Service. Section 9 of the EO provided for limited amounts of official time. It said “Solicitation of memberships, dues, or other internal employee organization business shall be conducted during the non-duty hours of the employees concerned. Officially requested or approved consultations and meetings between management officials and representatives of recognized employee organizations shall, whenever practicable, be conducted on official time, but any agency may require that negotiations with an employee organization which has been accorded exclusive recognition be conducted during the non-duty hours of the employee organization representatives involved in such negotiations.”

Collective bargaining was codified by the Civil Service Reform Act of 1978, which included the federal labor relations statute commonly referred to by its location in the United States Code — Chapter 71. Under “Findings and Purpose,” Chapter 71 provided that:

(1) experience in both private and public employment indicates that the statutory protection of the right of employees to organize, bargain collectively, and participate through labor organizations of their own choosing in decisions which affect them —

(A) safeguards the public interest,

(B) contributes to the effective conduct of public business, and

(C) facilitates and encourages the amicable settlements of disputes between employees and their employers involving conditions of employment; and

(2) the public interest demands the highest standards of employee performance and the continued development and implementation of modern and progressive work practices to facilitate and improve employee performance and the efficient accomplishment of the operations of the Government. Therefore, labor organizations and collective bargaining in the civil service are in the public interest.

Section 7131 provides for official time for collective bargaining and representational duties. It specifically provides that such official time “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.” It dropped the provision of EO 10988 that negotiations might have to occur during non-duty hours. The amounts of official time are negotiable and are not capped by the law.

The executive order is intended to reduce the amount of official time. It creates a new term — “union time rate” — defined as the total number of duty hours in the fiscal year that employees in a bargaining unit use for taxpayer-funded union time, divided by the number of employees in such bargaining unit. The intent is that agencies not agree to a “union time rate” of more than 1. The order also limits individual employees from spending more than 25% of their duty hours on official time, and restricts agencies from agreeing to provide office space, equipment and services to unions. The executive order also bans use of official time for lobbying and internal union business.

The provisions regarding the “union time rate” are negotiable, as is the limit of 25% official time. Proposals to have union representatives on 100% official time are common, as are agency proposals to limit employees to a fixed percentage of their duty hours. I know from personal experience that unions are not likely to agree to them, setting up disputes that will end up before the Federal Services Impasses Panel, the Federal Labor Relations Authority and the courts. Therefore it is unlikely we will see significant changes implemented immediately. The provisions banning use of official time for internal union business is not negotiable because it is already illegal. Chapter 71 specifically prohibits such activities.

The second executive order focuses on approaches to collective bargaining. It says “CBAs, and other agency agreements with collective bargaining representatives, often make it harder for agencies to reward high performers, hold low-performers accountable, or flexibly respond to operational needs. Many agencies and collective bargaining representatives spend years renegotiating CBAs, with taxpayers paying for both sides’ negotiators. Agencies must also engage in prolonged negotiations before making even minor operational changes, like relocating office space.”

To solve those perceived problems, it creates an interagency Federal Labor Relations Working Group, requires a more structured approach to negotiating contracts, and places limits on the time agencies should spend in bargaining. It specifically requires agencies to eliminate predecisional involvement required in executive orders issued by Presidents Clinton and Obama.

Many participants in collective bargaining would agree that negotiations often take far too long. Sometimes delays are caused by legitimate disagreements that the parties are working to resolve. At other times the delays are caused by people who are more interested in playing games than resolving differences. The game players are not limited to the union side of the table. I have worked many labor relations professionals who viewed bargaining as a game that they were determined to win. I have also worked with union officials who would not reach agreement on anything solely to keep an agency from acting. Neither of those approaches is constructive and they certainly do not adhere to the finding of the Congress in Chapter 71 that “labor organizations and collective bargaining in the civil service are in the public interest.”

Creation of a management-only Federal Labor Relations Working Group is not inconsistent with law. Nor is taking a harder line on collective bargaining or eliminating predecisional involvement. However, it puts the government and unions on a far more adversarial footing. 

My own experience is that predecisional involvement made agreements more likely and reduced the amount of time we spent in bargaining. Building an effective relationship with the union(s) was possible and in the agency’s interest. The last time I served as chief negotiator for an agency, we reached agreement on a full contract in 12 days. 

The content of these two executive orders is likely to be litigated for the next few years. I do not have a crystal ball, so I will not predict how that litigation will turn out. The provisions of Chapter 71 and the 40 years of case law that resulted will inform the decisions of the Impasses Panel, the Federal Labor Relations Authority and the courts.

My concern with respect to these executive orders is that they make civil service reform less likely. Those on the left, right and in the center generally agree that we need to modernize aspects the civil service. There are many areas where agreement between the right and left is a possibility. The issue of labor relations is not high on that list. Whenever the subject turns to unions, Democrats and Republicans retreat to their respective camps and lob bombs at one another, because both believe it is in their political interest to maintain the status quo.

I do not believe reform of labor relations or any other aspect of the civil service should be off the table. That kind of precondition to reform is the reason we have not seen real reform in 40 years. Every time we talk about civil service reform, all of the parties start laying out their “off the table” subjects. By the time we get to serious talk, there is nothing left to talk about and nothing changes.

I also believe that the only way we are going to modernize the civil service is through a nonpartisan approach where the reforms are driven by good government needs rather than politics. I continue to believe that a nonpartisan commission modeled on the Hoover Commission, with an implementation mechanism similar to the Base Realignment and Closure Commissions, is the only way we will get comprehensive modernization of the civil service. 


What’s Really in Those New Executive Orders?

Late on Friday afternoon, the White House announced that President Donald Trump had signed 3 Executive Orders that will affect the civil service. They are:

Executive Order Promoting Accountability and Streamlining Removal Procedures Consistent with Merit System Principles

Executive Order Ensuring Transparency, Accountability, and Efficiency in Taxpayer Funded Union Time Use

Executive Order Developing Efficient, Effective, and Cost-Reducing Approaches to Federal Sector Collective Bargaining

OPM Director Jeff Pon issued a statement saying “These Executive Orders are about protecting taxpayers’ dollars, including those of our dedicated federal employees, and putting those resources to use in the most efficient and effective way possible. By holding poor performers accountable, reforming the use of taxpayer-funded union time, and focusing negotiations on issues that matter, we are advancing our efforts to elevate the federal workforce. The vast majority of our employees are dedicated public servants who are dedicated to their missions and service to the American people. It is essential that we honor their commitment, and these measures reflect just that. Looking ahead, our focus will be on continuing to leverage technology to digitize our federal human resources infrastructure, build modern public human resources systems for the 21st century, and celebrate the hardworking federal employees who serve our great Nation each and every day.’

The new Executive Orders got a quick reaction from others, with American Federation of Government Employees President J. David Cox saying “Our government is built on a system of checks and balances to prevent any one person from having too much influence. President Donald Trump’s Executive Orders will undo all of that. This administration seems hellbent on replacing a civil service that works for all taxpayers with a political service that serves at its whim.”

Virginia Congressman Gerry Connolly tweeted “Trump continues his assault on the federal workforce with today’s executive orders. Attacking unions and demagoguing federal workers won’t help morale. Show the federal workforce that serves all Americans the respect it deserves, Mr. President.”

Heritage Foundation President (and former OPM Director) Kay Coles James tweeted “Encouraged to see POTUS executive orders for our civil service. These are important reforms and will make our government work more efficiently for taxpayers!”

So what are these Executive Orders? The death of democracy? The salvation of our nation? Those extremes overstate the impact these orders will have, both good and bad. With that in mind, this is the first of 2 posts I will write to go through the provisions of the orders. This post will focus on the order streamlining removal procedures, while the next will cover the 2 orders that address union issues. I will highlight key provisions of each order, along with my take on what it means and how it might affect federal workers. Let’s start with the order titled “Executive Order Promoting Accountability and Streamlining Removal Procedures Consistent with Merit System Principles.”

Section 1 — Purpose.

This section outlines the requirements in the Merit System Principles that employees be held accountable for performance and conduct (Merit System Principles 4, 5 and 6). It goes on to say that employees, via the Federal Employee Viewpoint Survey, have said their agencies do not do enough to deal with poor performers. Those are both facts, so I do not have anything to add, other than that I agree with the employees.

Section 2 — Principles for Accountability in the Federal Workforce. 

This section requires that “removing unacceptable performers should be a straightforward process that minimizes the burden on supervisors” and “agencies should limit opportunity periods to demonstrate acceptable performance under section 4302(c) (6) of title 5, United States Code, to the amount of time that provides sufficient opportunity to demonstrate acceptable performance.” It goes on to say “Supervisors and deciding officials should not be required to use progressive discipline. The penalty for an instance of misconduct should be tailored to the facts and circumstances.” After a brief discussion of the reason why discipline should be tailored to each employee’s circumstances, the order states “Suspension should not be a substitute for removal in circumstances in which removal would be appropriate. Agencies should not require suspension of an employee before proposing to remove that employee, except as may be appropriate under applicable facts.” It goes on to say that agencies should make decisions on proposed removals within 15 days of the end of the employee reply period, and that agencies should use Chapter 75 (adverse action) procedures where appropriate rather than the more common Chapter 43 (performance) procedures when dealing with poor performance. It also reminds agencies that the probationary period is the final step in the hiring process. A final paragraph says agencies should “prioritize performance over length of service when determining which employees will be retained following a reduction in force.”

There is a lot in this section. The statement about progressive discipline does not actually change anything. There is no requirement to use progressive discipline when it is not appropriate. For example, if an employee physically assaults another employee, and agency could go directly to a removal. There are other offenses for which removal on the first offense is appropriate. Most agency tables of penalties have numerous offenses where the prescribed penalty for a first offense is “reprimand to removal.” The part about probationary periods is right on target. Many agencies do a poor job of using the probationary period to weed out employees with conduct or performance problems and probation is, in fact, considered to be the final step in the hiring process. If agencies made better use of probation, many problem employees would go away long before they could become problems.

One of the most interesting provisions in this section is the requirement that OPM rewrite the regulations for reduction in force to “prioritize performance over length of service.” My first thought was that they could not do that because the law requires the current hierarchy of tenure group (career or career-conditional), then veteran preference, then length of service, and finally, performance, in determining RIF retention standing. The RIF provisions in the United States Code do not appear to specify that those factors be considered in that order. They are listed in that order and OPM regulations prioritize them in that order. It appears the administration does have the authority to rewrite the regulations to place performance higher in the list of considerations. Putting performance first has already been done in the Department of Defense, based on provisions in the 2016 National Defense Authorization Act.

Section 3 — Standard for Negotiating Grievance Procedures.

This section requires that “Whenever reasonable in view of the particular circumstances, agency heads shall endeavor to exclude from the application of any grievance procedures negotiated under section 7121 of title 5, United States Code, any dispute concerning decisions to remove any employee from Federal service for misconduct or unacceptable performance.” The idea here is that removals would not go through a negotiated grievance procedure (and arbitration), but rather would go to the Merit Systems Protection Board. This one is much easier said than done. Negotiated grievance procedures are exactly that — negotiated. Unions may not want to agree to such provisions and agencies will not be able to impose them unilaterally. What the president ordered is within his rights as chief executive, but refusing to go along is within the rights of unions. Getting anywhere on this one is going to take a long time.

The bigger question is whether it will actually make a big difference, even if fully implemented. In reality, unions often encourage employees to appeal to MSPB rather than going through the grievance/arbitration process. That is because typically because the union and agency split the cost of arbitration. What we may find is that this provision of the executive order may have little real impact.

Section 4 — Managing the federal workforce.

This section lays out a number of things agencies cannot do, including subjecting ratings and awards to a grievance or arbitration process, agreeing to limits on the agency’s ability to use Chapter 75 rather than Chapter 43 procedures, and giving employees more than 30 days notice before a removal. Like the changes in Section 3, most of this is negotiable. That means nothing will change quickly in response to the executive order.

Section 5 — Ensuring integrity of personnel files.

This section says “Agencies shall not agree to erase, remove, alter, or withhold from another agency any information about a civilian employee’s performance or conduct in that employee’s official personnel records, including an employee’s Official Personnel Folder and Employee Performance File, as part of, or as a condition to, resolving a formal or informal complaint by the employee or settling an administrative challenge to an adverse personnel action.”

There are 2 sides of this issue. The first is the idea that agencies should not agree to let a problem employee walk out with a clean record and go to work in another agency. The second is the idea that settlement agreements can save a lot of time and money and get a problem employee out of the agency for good with no risk of being overturned by a third party. Both arguments have merit. In an ideal world, settlement agreements would include language that an employee would not seek federal employment again, but agencies tend to think about the problem in front of them rather than the problem they might be creating for another agency a year from now. The president has the authority to issue this direction to agencies, but may find that getting them to abide by it is more difficult.

Sections 6, 7 and 8 — Implementation guidance.

These sections state that the executive order will need implementing guidance and regulations and that the order does not abrogate collective bargaining agreements.

What does really do and what does it miss?

This order is unlikely to result in immediate changes that will affect most federal employees. Agencies do not fire large numbers of people and are unlikely to start doing so now. We may see fewer settlement agreements and agencies taking a harder line on contract negotiations. Employees with performance problems may find they have less time to improve, or, if the agency elects to use Chapter 75 procedures, no time to improve before receiving a notice of proposed removal.

There are a few things that this order could have included that might have made a more immediate difference. For example, rather than getting into a discussion of the merits of progressive discipline (which often works in the agencies’ favor), agencies could have been ordered to update their tables of penalties to make removal the preferred penalty on the first offense for some particularly egregious offenses. For example, if an employee physically assaults another employee, uses certain illegal drugs, or commits other severe offenses, the agency would consider those as mandatory removal offenses in the absence of some compelling individual circumstances. Some agencies have no table of penalties, making it harder for managers to decide what is a proper penalty. Requiring every agency to develop a table of penalties would be another good step.

Another more consequential change would be to focus on the time between the offense and the proposed discipline. The executive order focuses on the time between the proposed notice and the decision, when the reality is that much of the time is often in the gap between an employee doing something and the agency issuing a proposal letter. It may be months after an offense before the agency gets around to doing something about it. The time lag makes discipline less effective because it is so long after the offense occurred. That time is not typically governed by law, regulations or collective bargaining agreements. Significantly reducing the gap would have the dual benefits of reducing the time to take an action and making actions such as reprimands and suspensions more effective by reinforcing the cause-and effect nature of misconduct and discipline.

The bottom line is that this Executive Order may make a small dent in the problem of dealing with poor performers and misconduct. It may result in changes to collective bargaining agreements at some point in the future. For the vast majority of federal workers who do their jobs and do not have performance or conduct problems, there is likely to be no impact at all. With respect to this Executive Order — in the words of the British Ministry of Information during World War II, Remain Calm and Carry On.

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