Federal Employees Fight to Keep No-Show Jobs in Union Lawsuit

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Federal employee unions and the Trump administration sparred in court over a set of executive orders that make changes to official time and grievance procedures on Wednesday. U.S. District Judge Ketanji Brown Jackson heard oral argument yesterday at the U.S. District Court for the District of Columbia. In conjunction with the oral argument, federal employee unions held protests across the country.

As I previously wrote, the three executive orders “will make it easier to remove federal employees for poor performance and misconduct, require agencies to negotiate more effective union contracts and limit the amount of time federal employees conduct union business on the taxpayers’ dime.”

In particular, federal employee unions are irritated with executive order that limits official time. Over the decades, official time has become a sacred cow to federal employee unions. This is the case because federal employee unions are prohibited from charging so-called agency fees or forced union dues. Under the federal collective bargaining system, taxpayers are forced to pay dues to a union instead of employees. And it is expensive, costing a minimum of $175 million annually and over a thousand federal employees spend 100 percent of their time conducting union business. The real cost of official time is much higher, but federal agencies do not track official time use accurately.

The first half of the oral argument considered questions on jurisdiction and whether the union filed a complaint too quickly. However, this post will focus on one argument made by the union. Reporting from Courthouse News Services summarizes the primary union contention against the executive orders:

But the unions say the time to act is now because the executive orders conflict with the 1978 Federal Service Labor-Management Relations Statute, which expressly stripped the president of any authority to issue executive orders on collective bargaining.

Prior to the 1978 law, the unions say, labor-management relations were exclusively governed by executive order. Congress passed the law after deciding collective bargaining should be off limits to the president except in discreet matters.

This is an odd argument for any federal employee union to make. I am not aware of the American Federation of Government Employees (AFGE), National Treasury Employees Union (NTEU) or National Federation of Federal Employees (NFFE) taking this stand when President Obama issued Executive Order 13522—Creating Labor-Management Forums to Improve Delivery of Government Services.

This E.O. certainly impacted collective bargaining and surpasses “discreet matters.” Bob Gilson, author at FedSmith.com, explained the “a primary purpose of the Obama Executive Order was to expand the number of topics on which federal employee unions can bargain without having to change the federal labor relations statute. These topics, known as “permissive” topics of bargaining, allow federal agencies to bargain with unions (or not) as they see fit.”

Rather than file a lawsuit against President Obama’s Executive Order that impacts the federal government collective bargaining system, the presidents of the AFGE and NFFE commended Obama for it.

Bottom-line: President Trump’s executive orders strengthen the federal workforce and ensure efficient delivery of public services.

Official time is a massive subsidy to federal employee unions that takes public employees away from the serving the public. Union-negotiated grievance processes are too time consuming and allow poor performing federal employees and those who are convicted of misconduct to keep their job. A recent Heritage Foundation report outlines the steps it takes to fire a federal employee and estimated it takes 150-290 days.

Hopefully, Congress will seek to pass legislation to cement these improvements to the federal workforce in law.