Trump Executive Order Curbs Federal Employee Union ‘Official Time’ Abuse

Employers have a right to insist that employees limit the amount of time they may devote to conducting union business during work hours. President Trump thinks this principle should apply to the unions that represent people who work in federal agencies. Last Friday, May 25, Trump issued an executive order designed to curtail on-the-job union activity. Federal employees now may spend no more than 25 percent of a work day on such matters. Administration officials estimate the move will save taxpayers at least $100 million a year. The executive order was one of three issued that day to improve accountability within the civil service bureaucracy. Federal employee unions and their allies on Capitol Hill, predictably, are outraged.

National Legal and Policy Center more than once has examined the issue of federal employees collecting pay while on union or “official” time. Back in December 2012, this became a leading issue for a while. The U.S. Office of Personnel Management (OPM) had just come out with an internal report estimating that federal workers during Fiscal Year 2011 spent a combined 3.4 million work hours conducting union business at a public cost of $155 million. These figures represented respective increases of 11 percent and 13 percent over those of the previous year. One or more OPM staffers had leaked the data to the newsweekly Federal Times. In October 2014, the Government Accountability Office (GAO) released its own study based on a sample of 10 agencies. Employees at these agencies accounted for 2.5 million hours of official time during Fiscal Year 2013, up from 2 million during Fiscal Year 2006.

Reps. Phil Gingrey, R-Ga., and Dennis Ross, R-Fla., were exercised enough over the OPM numbers to write to then-OPM Director John Berry to demand greater oversight and transparency: “We believe that it is absolutely necessary to ensure that government employees spend their time serving the interests of their employers, namely, the American taxpayer.” In 2015, another critic of official time privilege, Rep. Jody Hice, R-Ga., introduced the Federal Employee Accountability Act to bar federal unionized workers from engaging in bargaining or arbitration during working hours. “After examining the practices of over 60 government agencies,” Hice remarked, “my office has found an astounding amount of government waste. By eliminating the ‘official time’ practice, we will return over $1 billion to hardworking American taxpayers, and shed this shady, wasteful practice that only benefits unions.” The measure stalled, but Rep. Hice reintroduced his bill early last year as the Official Time Reform Act. The House Committee on Oversight and Government Reform approved it that March.

Federal workers who engage in union activity while on the clock aren’t breaking the law. The Civil Service Reform Act of 1978 authorized this practice as it applied to core union activities. Supporters at the time had argued this provision would improve employee morale and more quickly resolve labor disputes. Four decades later, it is clear that intended or not, the law has given federal employee unions enormous leverage in determining workplace rules. Toward that end, Donald Trump, who as a presidential candidate vowed to “drain the swamp” in Washington, signed an executive order on May 25 to limit the amount of time that federal employees can spend on union business to 25 percent of a given workday, and in addition, require agencies to charge union members rent for use of office space in federal buildings. The official time provision alone, says the White House, will save taxpayers more than $100 million a year.

The directive is one of three workforce-related executive orders issued that day by the president. A separate order makes it easier for agencies to fire poor-performing employees through such steps as shortening the maximum grace period for likely terminated employees to improve their performance (and keep their jobs) from 120 to 30 days; OPM recently estimated that federal employees are 44 times less likely to be fired than equivalent private-sector workers. Another order requires a federal agency and a union no more than one year to negotiate a contract. This is to prevent the bargaining process from being drawn out and costly. Federal agencies, concludes the White House, paid $16 million in union negotiator salaries in 2016. Taken together, these orders make for an effective counterweight to union excess. “Today the President is fulfilling his promise to promote more efficient government by reforming our civil service rules,” said White House Domestic Policy Council Director Andrew Bremberg. “These executive orders will make it easier for agencies to remove poor-performing employees and ensure that taxpayer dollars are more efficiently used.”

Federal employee union leaders see the issue very differently. J. David Cox, president of the American Federation of Government Employees, which represents 700,000 employees, expressed caustic disdain. “This is more than union busting – it’s democracy busting,” he said. “These executive orders are a direct assault on the legal rights and protections that Congress has specifically guaranteed to the 2 million public-sector employees across the country who work for the federal government.” Tony Reardon, president of the 150,000-member National Treasury Employees Union, termed the executive orders “an assault on federal employees” that “would begin the process of dismantling the merit system that governs our civil service.” They have an ally in Rep. Elijah Cummings, D-Md, the top Democrat on the House Oversight and Government Reform Committee. In a prepared statement, Cummings said, “The Trump administration’s so-called ‘reforms’ will harm middle-class workers who dedicate their lives to public service, impair our ability to recruit and retain the best and the brightest, and degrade the services that our government delivers to the American people every single day.”

Such people should not be underestimated in their ability to turn public opinion against President Trump. It’s a mark of their clout that Trump chose to sign the three executive orders behind closed doors, waiting until late Friday afternoon, just before the start of Memorial Day weekend, to release them. Another constraint on the administration is that it will take time for these changes to be realized. Workplace issues, including official time, must be negotiated through collective bargaining. And federal agencies have very limited leeway to modify existing contracts. Finally, federal workplace relations primarily are driven by legislation. Jeffrey Neal, former security chief at the Department of Homeland Security and currently senior vice president at the Fairfax, Va.-based consulting firm ICF International, explains: “There are laws that govern all of these things they are trying to do. There’s only so much you can do when Congress hasn’t changed the law.”

Mindful of such constraints, President Trump did the right thing in curbing excessive and at times abusive practices by federal employee unions. Anyone at all familiar with the workings of the federal bureaucracy knows that it is next to impossible to fire incompetent employees, especially those with unions in their corner who can file grievances and stall for time. And action is possible on the legislative as well as the executive front. Last year Congress, acting on reports of patient neglect at Department of Veterans Affairs hospitals, passed the VA Accountability and Whistleblower Protection Act, which enabled the Trump administration to fire more than 2,500 VA employees. For too long, federal employee unions have pursued their own collective interest at the expense of the public interest. The president’s executive order limiting official union time, along with his two other orders of last week, represent an attempt to reacquaint federal employees with their mission to the public.