The draft rules would have barred union representatives from using official time to work on EEO complaints unless specifically allowed by a contract. Image: bangoland/Shutterstock.com
The EEOC has formally withdrawn rules it drafted late in the Trump administration, but which the Biden administration then prevented from taking effect, to generally disallow federal employees with union roles such as stewards from receiving official time for representing other employees in EEO proceedings.
A notice in the August 16 Federal Register is the latest step by agencies under the Biden administration to take policies of its predecessor off the books, with the added effect of making them more difficult to reinstate promptly should former President Trump win election in November.
The draft rules would have barred union representatives from using official time to work on EEO complaints unless specifically allowed by a contract, which would have reversed an EEOC practice in effect since the early 1970s of allowing on-the-clock time for that purpose government-wide.
The notice of withdrawal notes that during two separate comment periods on the proposed rules during 2020, the “vast majority” of those who commented opposed the change. Federal unions for example argued that many employees would lose valid complaints if they chose to represent themselves, given the complexities of the EEO process. They could hire outside counsel to represent them but that would come at a cost that some could not afford, they added.
However, the EEOC under the Trump-appointed majority at the time submitted the rules as final rules just days before the January 2021 change in administrations; the new Biden administration promptly blocked their publication. The new notice—saying that federal labor relations law does not address the EEO process and therefore should not override EEOC policy—essentially means that any attempt to revive the change would have to start from square one.
The Biden White House similarly blocked implementation of other Trump administration workplace policies, including by quickly revoking separate executive orders to limit the amounts and other allowable uses of that time. Also, earlier this year OPM finalized rules to prevent the return of an excepted service Schedule F by executive order—rules that could in turn be countermanded, but only after a new rule-making process. Democrats are continuing to try to go a step farther and put such a ban into law.
Separately, unions are looking to the FLRA to reverse a number of decisions limiting management’s obligations to bargain that it issued with a 2-1 Republican majority during the Trump administration.
The Senate recently confirmed a Biden nominee giving the board a 2-1 Democratic majority.
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