Trump’s New Rules for Federal Unions to Start This Week
The administration wants agencies to reopen collective bargaining agreements
Lisa Rein, The Washington Post
Sunday, July 8, 2018
WASHINGTON - Federal agencies on Monday begin implementing executive orders from President Donald Trump on how to confront employee unions, following strict guidelines likely to escalate tensions that have been building since the president took office.
The administration describes Trump's new rules, issued in May, as an effort to streamline a bloated bureaucracy and improve accountability within the federal workforce of 2.1 million. The unions counter that the orders are only the latest in Trump's aggressive actions intended to weaken their bargaining power and make it easier to fire government workers.
Jeff Pon, chief of the Office of Personnel Management, gave agencies details late last week for implementing the presidential orders.
The administration wants agencies to reopen collective bargaining agreements to reduce the on-duty time union representatives spend representing employees. Managers are directed to "monitor and carefully report" on the time and make the information publicly available. And agencies are directed to move swiftly to fire poor performers, renegotiating any contracts that allow for progressive discipline.
The conflict appears headed for a showdown, either in federal court, where the unions have filed numerous lawsuits challenging the orders, or in Congress. The administration and the unions have courted Capitol Hill allies, with Republicans supporting Trump's tactics and Democrats backing the unions, a key constituency.
Trump's executive orders represent a broadening of the get-tough initiatives that have played out in individual agencies since he took office, including recent efforts to force unions to move out of government-paid office space and to rein in the use of official work time by union representatives who deal with employee grievances and disciplinary matters.
Furious union leaders have sued the president, charging that he exceeded his authority and broke the law guaranteeing federal workers union representation. A judge is expected to consider all of the lawsuits later this month.
"Candidly, I find it reprehensible," said Tony Reardon, president of the National Treasury Employees Union, which represents 150,000 employees. "Why are the president and the administration continually on the attack against working-class Americans who are simply doing a job they're proud to do?"
For decades, unions have had vast power over the federal workforce, demanding a voice in almost every workplace issue except pay, which is set by Congress. Federal employee union membership is growing, even as private sector union enrollment declines. And efforts by previous Republican administrations to diminish union power have been piecemeal.
But since his 2016 election, Trump has made clear that he considers unions to be major contributors in driving up costs and paralyzing agencies in their attempts to discipline poor performers.
"President Trump has been very clear since the campaign trail that he wants to go after waste and fraud in government. Reforming the federal workforce is a giant step in ensuring more accountability for the government's use of American taxpayer dollars," White House spokesman Raj Shah said in a statement.
Many of the efforts have been overseen by James Sherk, a former Heritage Foundation labor economist who joined Trump's transition team to tackle labor challenges. He now sits on the low-profile Domestic Policy Council. The White House declined to make him available for an interview.
Over a decade at Heritage, a leading conservative think tank, Sherk, 37, wrote policy papers on the need to roll back public employee labor rights. He helped Wisconsin Gov. Scott Walker, R, engineer a plan to bust the state's employee unions in 2011. He argued for freezing federal salaries to bring them in line with the private sector and said in a 2007 video that the landmark 1993 law granting unpaid family and medical leave encourages employee timecard abuses.
Since Trump took office, Sherk's hard-line stance has helped guide the ongoing power struggles with the unions, according to Trump advisers.
In quick succession, federal employees have subjected to budget cuts, a hiring freeze, a proposed pay freeze and $143 billion in proposed cuts to retirement benefits.
The administration worked through Congress last year to push a precedent-setting bipartisan law clearing the way for the Department of Veterans Affairs to fire problematic employees.
In June, White House budget director Mick Mulvaney proposed a government reorganization that the unions branded as a thinly disguised effort to slash jobs.
And Trump officials have cracked down on day-to-day work practices that had been in place for years, severely restricting telecommuting at some agencies, for example, and forcing union representatives to give up free office space and even parking spaces.
The new rules also restrict working conditions that can be bargained over. They give poor performers 30 days to show improvement rather than the current 120 days. They make performance a key factor, rather than seniority, when layoffs are on the table.
The administration signaled its hard-line posture in March when the Education Department imposed its own contract after months of bargaining with the American Federation of Government Employees broke down.
Education officials, meanwhile, are enforcing the contract. The union has been kicked out of its small offices at the agency's Washington headquarters and its regional offices and told it must pay rent.
Last month, management sharply curtailed telework to one day per pay period, a benefit pushed by the Obama administration as a way to save expensive office lease costs and keep cars off the road. Agriculture and some Commerce Department offices also have slashed telework, a practice Trump officials have said they suspect leads employees to slack off.
Education officials also are insisting that union representatives take time off to represent employees, instead of carving out a portion of their workweek for what is known as "official time" to represent employees who have filed workplace grievances. The AFGE is temporarily sending lawyers from its national office to step in for local representatives.
As the largest government workers' union, with 700,000members, the AFGE says management's contract is illegal - and guts previously negotiated provisions for telework, performance evaluations, work schedules and other protections. The union is awaiting a ruling from the Federal Labor Relations Authority onits complaint of unfair labor practices.
Resolution of the dispute is uncertain, though. Trump has not named a general counsel for the authority, who would have to approve any disposition for labor or management.
Under Trump, the FLRA has issued a number of anti-union decisions. One reversed years of case law that had allowed unions to bargain over changes to employees' conditions of employment, such as changes to job duties.
The administration also disbanded advisory labor-management forums at federal agencies created in the Obama era to foster dialogue.
A White House official said the forums were a "waste of resources and sucking up a ton of our time." But the unions called them valuable tools that improved productivity and resolved disputes before they required costly arbitration.
"Official time" has been a particular target for the White House. Trump's orders restrict to 25 percent the on-duty time employees may be paid for union work.
"It means greatly diminished representation," said David Borer, the AFGE's general counsel, adding, "We've never been attacked quite like this before."
The White House official said that limiting it will serve a purpose. "If they have to pay the costs, then they won't be bringing Mickey Mouse grievances," said the official, who was not authorized to speak publicly about labor-management issues.
At the Department of Housing and Urban Development, for example, union officials say they have received emails from management recently that strongly suggest they accept limits on official time rather than bargain over the issue.
And management has told the union to stop using agency parking spaces, phones, computers and other resources to which they have long had access. Unions said they expect other agencies to follow suit.
"The agency feels empowered," said Holly Salamido, president of AFGE Council 222 of HUD locals. The president "can't just use an executive order to override a contract."
Trump's orders can be undone by the next president. But the White House decided that presidential orders were a better path to immediate change than seeking legislation, even in a Republican-controlled Congress, because of the vast political clout of federal workers.
"The administration has played its cards,'' said Donald Kettl, a public affairs professor at the University of Texas at Austin, "and the perception of union-busting has cut off any possibility for bipartisan action on needed reforms to government and the civil service."
The executive orders have drawn opposition from a majority of Senate Democrats and a bipartisan group in the House, who have written letters to the president. Last week, four current and former House members submitted a friend-of-the court brief on behalf of the unions in their federal court challenge. The brief says the executive orders would open the door to patronage and upend the "merit-based, non-partisan" civil service.
Sherk and the policy council, meanwhile, are awaiting the court's decision while planning more unspecified workforce changes, administration officials say. The top priority now, the White House official said, is to ensure that the new limits on unions are enforced throughout the government.