Following are three sets of guidance OPM issued on carrying out President Trump’s recently issued executive orders—one on disciplinary practices, one on bargaining in general and the third on bargaining on allowable official time for employees with union roles.
Guidance for Implementation of Executive Order 13839 – Promoting Accountability and Streamlining Removal Procedures Consistent with Merit System Principles
Merit system principles provide a framework for responsible behavior. These underlying values promote efficient and effective use of the workforce and establish that Federal employees should be held accountable for performance and conduct. In keeping with merit system principles, the President’s Management Agenda (PMA) recognizes that Federal employees underpin nearly all the operations of the Government, ensuring the smooth functioning of our democracy. The Federal personnel system needs to keep pace with changing workplace needs and return to its root principles. Notably, a majority of both employees and managers appear to agree that the performance management system fails to reward the best and address the worst employees.* Finally, the PMA calls for agencies to establish processes that help agencies retain top employees and efficiently remove those who fail to perform or to uphold the public’s trust. Consistent with the vision of the PMA, Executive Order (EO) 13839, signed by the President on May 25, 2018, requires executive agencies (as defined in section 105 of title 5, U.S. Code, excluding the Government Accountability Office (agencies)) to further facilitate a Federal supervisor’s ability to promote civil servant accountability while simultaneously recognizing each employee’s procedural rights and protections. Agencies should recognize and reward good performers, while unacceptable performers should be separated if they do not improve. Misconduct should be dealt with promptly in the Federal workforce. This guidance summarizes key requirements of EO 13839.
Implementation and Renegotiation of Collective Bargaining Agreements
The EO directs agencies, at the earliest moment the law permits, to renegotiate any collective bargaining agreement (CBA) provision that is inconsistent with the EO or with any final Office of Personnel Management (OPM) regulations promulgated pursuant to the EO subject to applicable law. EOs possess the force of government-wide rules. Therefore, provisions of the EO are effective on the date the CBA expires or rolls over, whether or not the CBA is reopened for negotiations. Nonetheless, agencies are encouraged to consult with legal counsel and offices of labor relations on questions relating to appropriate implementation of the EO. This consultation would include questions about how to implement the provisions of the EO that conflict with a CBA.
Section 7 of EO 13839 requires OPM to examine whether existing OPM regulations effectuate the principles articulated in Section 2 of the EO and the requirements of Sections 3, 4, 5, and 6 of the EO. If they do not, OPM is directed to propose for notice and public comment, as soon as practicable, regulations to effectuate these principles and requirements. Section 8 requires all actions implementing the EO, including OPM’s regulations, to be consistent with applicable law. OPM has started this review process and will propose regulatory changes as appropriate.
If OPM ultimately makes any regulatory changes, the EO requires agencies to revise agency policies within 45 days of the issuance of any final OPM regulations implementing the requirements of the EO.
The EO requires OPM to submit a report to the President, through OMB, within 15 months of any final rules issued pursuant to the EO. This report will evaluate the effect of these rules, including their effect on a supervisor’s ability to hold employees accountable for their performance. We anticipate working closely with agencies through the Chief Human Capital Officers (CHCO) Council in assessing the effect of these rules and developing this report.
Finally, the EO requires OPM to work with the CHCO Council to undertake a government-wide initiative to educate Federal supervisors about how to hold employees accountable for unacceptable performance or misconduct under any new rules issued by OPM. While this education process will not start until after any new rules are issued by OPM, agencies are reminded of the requirements in OMB Memorandum M-17-22 to ensure managers and supporting human resources staff are appropriately trained on current rules.
We have included the attached table summarizing agency deadlines for implementation of key requirements of this EO. Please consult the EO for more information on general provisions.
Principles for Accountability in the Federal Workforce
Section 2 of EO 13839 sets forth ten principles for accountability in the Federal workforce. These principles are intended to address implementation challenges, misconceptions, and practices related to addressing Federal employee performance and conduct which present obstacles to taking swift and appropriate action. Included are the following principles:
To the extent practicable, agencies should issue decisions on proposed removals taken under chapter 75 of title 5, United States Code, within 15 business days of the end of the employee reply period following a notice of proposed removal.
To the extent practicable, agencies should limit the written notice of adverse action to the 30 days prescribed in section 7513(b)(1) of title 5, United States Code.
The removal procedures set forth in chapter 75 of title 5, United States Code (Chapter 75 procedures), should be used in appropriate cases to address instances of unacceptable performance.
Section 7(b) of EO 13839 requires each agency to take steps to conform, to the extent permitted by law, internal agency discipline and unacceptable performance policies to these principles within 45 days of the issuance of the EO, in areas where issuance of final OPM regulations is not required. Section 7(b) also requires agencies to renegotiate, as applicable, any collective bargaining agreement inconsistent with any provisions of the EO on the earliest practical date permitted by law. Please refer to the attached EO for complete details on these ten principles and implementation requirements. As terms of collective bargaining agreements and other agreements may differ widely, agencies are encouraged to consult with agency legal counsel and agency labor relations offices on questions relating to appropriate implementation of the EO.
Standard for Negotiating Grievance Procedures
Section 3 of EO 13839 requires an agency head, whenever reasonable in view of the circumstances, to endeavor to exclude from the negotiated grievance process any dispute concerning the decision to remove an employee from the Federal service for misconduct or unacceptable performance. The EO directs agencies to commit the time and resources necessary to endeavor to achieve this goal while also fulfilling their obligation to bargain in good faith. Agencies are required, to the extent permitted by law, to promptly seek aid from the Federal Mediation and Conciliation Service and, as needed, the Federal Service Impasses Panel in the resolution of disagreements when negotiating these exclusions. Section 3 also requires agencies to provide an explanation to the President, through the Director of OPM, within 30 days after the adoption of any collective bargaining agreement that fails to achieve this goal. This requirement commences on July 9, 2018. Such an explanation would not be required if the agreement was adopted pursuant to an order of the Federal Service Impasses Panel or an arbitrator engaging in interest arbitration, provided that the agency had proposed excluding from the negotiated grievance procedure the decision to remove an employee from the Federal service for misconduct or unacceptable performance.
Managing the Federal Workforce
To promote good morale in the Federal workforce, employee accountability, and high performance, and to ensure the effective and efficient accomplishment of agency missions and the efficiency of the Federal service, Section 4 of EO 13839 establishes requirements for agencies regarding negotiated grievance procedures. For example, to the extent consistent with law, it requires agencies to exclude from grievance and binding arbitration procedures disputes over the assignment of ratings of record and awards of any form of incentive pay. Such matters may still be covered by internal agency administrative grievance procedures. It further precludes agencies from entering into any agreement that would purport to bind the agency to: limit agency discretion to utilize Chapter 75 procedures to address unacceptable performance; require an agency to use the procedures under Chapter 43 before removing an employee for unacceptable performance; require affording employees any additional performance assistance period (e.g. PAP, etc.) or similar informal period to demonstrate improved performance prior to the initiation of an opportunity period under 5 U.S.C. 4303(c)(6); use progressive discipline principles; or afford employees performance opportunity periods longer than 30 days (unless determined to be necessary by an agency in its sole and exclusive discretion) to address unacceptable performance. The EO directs agencies to renegotiate any CBA provision that is inconsistent with these requirements at the earliest opportunity permitted by law. For example, at the soonest possible opportunity, agencies should take steps to modify CBAs and other agreements that would require utilization of progressive discipline principles in disciplinary procedures. Agencies should further take steps to include in agreements terms that clarify, consistent with the EO and in accordance with the management rights provision of the Federal Service Labor-Management Relations Statute, 5 U.S.C. § 7106(a)(2), that consideration of progressive discipline is not required or permitted when administering disciplinary action, that disciplinary actions should be calibrated to specific facts and circumstances of each situation, and that suspensions are not required before proposing an employee’s removal if facts and circumstances warrant the proposal of a removal.
These presidential requirements are intended to remove unnecessary barriers for timely and effectively addressing misconduct, unacceptable performance, and other matters. They further support the steps agencies should already be taking to support plans to maximize employee performance.** They do not, however, abrogate provisions of existing collective bargaining agreements, as provided in section 8(b) of the EO to the extent that the current CBA is still in effect (having not expired or reached the end of a current term) or a CBA does not contain a reopener provision permitting the EO to be immediately effective during the term of an agreement. Please refer to the attached EO for complete details on these comprehensive requirements.
Ensuring Integrity of Personnel Files
Section 5 of EO 13839 provides that agencies shall not agree to erase, remove, alter, or withhold from another agency any information about an 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 a condition to, resolving a formal or informal complaint by the employee or settling an administrative challenge to an adverse personnel action. Please consult with your agency legal counsel on appropriate application and implementation of Section 5 of the EO.
Data Collection of Adverse Actions
Section 6 of EO 13839 outlines certain types of data for agencies to collect and report to OPM for fiscal year (FY) 2018, and for each fiscal year thereafter. To enhance public accountability of agencies for your management of the Federal workforce, OPM will publish the information received from agencies aggregated at a level necessary to protect personal privacy.
The first report will cover the FY 2018 period of October 1, 2017, through September 30, 2018. This report will be due to OPM no later than November 29, 2018. Due to the nature of the data outlined in Section 6, some of this information may need to be manually compiled. Agencies are strongly encouraged to begin assembling information required by Section 6 at the earliest opportunity in order to facilitate submission of your first report for this fiscal year. Each department or agency head must coordinate collection of this data from your components and compile one consolidated report for submission to OPM using the attached form. The report must be submitted electronically to OPM via email at firstname.lastname@example.org no later than 60 days following the conclusion of each fiscal year. OPM will issue reminders of this requirement at the end of each fiscal year. Agencies must also observe all applicable laws, including those governing privacy and data security, when compiling and submitting data pursuant to this reporting requirement.
Guidance for Implementation of Executive Order 13836 – Developing Efficient, Effective, and Cost-Reducing Approaches to Federal Sector Collective Bargaining
Approximately 1.2 million Executive Branch employees are represented by labor unions who collectively bargain on behalf of these employees. This represents approximately 57 percent of the Federal Government’s non-Postal workforce. The President’s Management Agenda (PMA) lays out a long-term vision for modernizing the Federal Government in key areas that will improve the ability of agencies to deliver mission outcomes, provide excellent service, and effectively steward taxpayer dollars on behalf of the American people. Notably, the PMA emphasizes that taxpayer dollars must go to effective programs that produce results efficiently. In 2016, the salaries for union negotiators cost $16 million. Consistent with the vision of the PMA, Executive Order (EO) 13836, signed by the President on May 25, 2018, calls for executive departments and agencies subject to chapter 71 of title 5, United States Code (agencies) to develop efficient, effective, and cost-reducing approaches to Federal sector collective bargaining. This guidance summarizes key requirements of EO 13836.
Section 1 of EO 13836 provides that agencies should secure collective bargaining agreements (CBA) that: promote an effective and efficient means of accomplishing agency missions; encourage the highest levels of employee performance and ethical conduct; ensure employees are accountable for their conduct and performance on the job; expand agency flexibility to address operational needs; reduce the cost of agency operations, including with respect to the use of taxpayer-funded union time; are consistent with applicable laws, rules, and regulations; do not cover matters that are not, by law, subject to bargaining; and preserve management rights under section 7106(a) of title 5, United States Code (management rights). The EO further notes that agencies that form part of an effective and efficient Government should not take more than a year to renegotiate CBAs, which would include, if necessary, any mediation and impasse proceedings.
Implementation of EO 13836 and Renegotiation of Collective Bargaining Agreements
Section 4 directs agencies to make every effort to secure a CBA that meets the objective of the EO. Accordingly, when agencies are negotiating a CBA, they must make every effort to secure a CBA that meets objectives that advance the policies set forth in section 1 of the EO. EOs possess the force of government-wide rules. Therefore, provisions of the EO are effective on the date the CBA expires or rolls over, whether or not the CBA is reopened for negotiations. Nonetheless, agencies are encouraged to consult with legal counsel and offices of labor relations on questions relating to appropriate implementation of the EO.
Establishment of an Interagency Labor Relations Working Group
Section 3 of EO 13836 creates an Interagency Labor Relations Working Group (LRG). As noted in the attached EO, the purpose of the LRG is to assist the Director of the Office of Personnel Management (OPM) on matters involving labor-management relations in the executive branch and propose recommendations to the President for improving the organization, structure, and functioning of labor relations programs across agencies.
Section 3 of EO 13836 specifies that participating agencies shall provide such assistance to the LRG to carry out the responsibilities outlined in the Order.
1. LRG Participation. Each agency with at least 1,000 employees represented by a collective bargaining representative pursuant to chapter 71 of title 5, United States Code shall nominate a minimum of one agency representative to participate in the LRG. The EO specifies that representatives of participating agencies are determined by their agency head in consultation with the OPM Director. With this in mind, I believe agency representatives should be assigned to an individual at a very senior level who has the trust of the agency head and serves as an integral part of the leadership team. This does not preclude agency representatives from consulting or coordinating with labor relations practitioners. Agencies with less than 1,000 employees represented by a collective bargaining representative may, at the election of the agency head, nominate agency representatives to participate in the LRG with the concurrence of the OPM Director. These representatives should also be at a very senior level. LRG nominations should be endorsed by the agency head prior to submission to the OPM Director. The LRG nominee form is attached, which lists the information required for nominees and nominating officials. LRG participants are expected to maintain regular participation at LRG meetings, co-chair or participate, or designate a representative to participate, in at least one LRG workgroup. LRG participants have authority to vote on behalf of or identify a proxy to vote on behalf of his/her agency during LRG decision-making activities. Each agency is responsible for determining if they have over 1,000 bargaining unit employees represented by a collective bargaining representative, and thus required to nominate at least one agency representative to serve on the LRG. Each agency head should submit their LRG nominee(s) to OPM by July 13, 2018, at LRG@opm.gov.
2. LRG Invitations to Additional Participants. Additional agency representatives may be invited to support the efforts of the LRG and contribute to projects or workgroups, as particular skills and expertise are needed. Agencies must respond to such invitations expeditiously.
Labor Relations Group Activities
Section 3 of EO 13836 requires the LRG to assist the OPM Director on matters involving labor-management relations in the executive branch. LRG Activities will include addressing–
1. Collection of Information. It is anticipated that the LRG will assist the OPM Director in making term CBAs publicly accessible on the Internet as soon as practicable. The LRG could also create an inventory of CBA language involving significant subjects of bargaining relevant to more than one agency that have been proposed for inclusion in at least one term CBA. OPM is taking steps to create a collective bargaining database. Additional information will be provided when this database is available to receive CBAs.
2. Model Ground Rules. The LRG will develop model ground rules for negotiations which aim to minimize delays, set reasonable parameters for good faith negotiations, and call for timely mediation of disputes and subsequent impasse proceedings, as needed.
3. Analysis of Term CBA Provisions. The LRG will analyze term CBA provisions on subjects of bargaining relevant to more than one agency and assess possible effects on statutory management rights and potential impact to efficiency, effectiveness, cost of operations, employee accountability and performance, and other policies set forth in section 1 of the Order.
4. Executive Branch Labor Relations Information. The LRG will create an inventory of language on common topics and share information and analysis with agencies to reduce duplication of efforts and encourage common approaches for collective bargaining across the government.
5. Communications and Agency Outreach. The LRG will facilitate interagency communications and the sharing of best practices regarding collective bargaining.
6. Government-wide approaches. The LRG will assist the OPM Director in developing Government-wide approaches to bargaining issues that advance the policies outlined in section 1 of the Order.
7. Report to the President. The LRG Chair will submit a report to the President, through the Office of Management and Budget, within 18 months of the first LRG meeting. The report will propose recommendations for meeting the Order’s goals through collective bargaining and for improving the organization, structure, and functioning of labor relations programs across agencies.
Collective Bargaining Objectives
Section 4 of EO 13836 directs agencies, when negotiating with a collective bargaining representative, to: 1) establish collective bargaining objectives that advance the policies of section 1 of the EO; 2) consider the analysis and advice of the LRG in establishing these objectives and when evaluating any collective bargaining proposals; 3) make every effort to secure a CBA that meets these objectives; and 4) ensure management and supervisor participation in the negotiating team representing the agency. Please refer to the EO for complete details on agency requirements related to collective bargaining objectives.
Agency Reporting Requirements for Existing CBAs
1. CBA Report to OPM. Section 8 of EO 13836 requires agencies to submit to OPM each term CBA currently in effect and its expiration date. Agencies shall also submit new term CBAs and their expiration dates to the OPM Director within 30 days of each CBA’s effective date, and new arbitral awards to the OPM Director within 10 business days of receipt. OPM is required to develop a prescribed format for submitting this information within 90 days of the date of EO 13836 and agencies will have 30 days from the date OPM prescribes the format to make their submissions. In conjunction with development of the collective bargaining database, OPM is developing this prescribed format and method for submission which will be provided at a future date. However, it is anticipated that all documents submitted to OPM will be required to be in optical character recognition text-readable format. It is also anticipated that agencies will need to provide term CBAs in a format compliant with the standards of Section 508 of the Rehabilitation Act of 1973, as amended (29 U.S.C. § 794 (d)). This law requires Federal agencies to make their electronic and information technology accessible to people with disabilities. This will facilitate the EO requirement to make term CBAs publicly accessible on the Internet as soon as practicable. Additional guidance will be provided by OPM in the near future regarding reporting format.
2. CBA Report to Agency Head. Agencies must prepare and provide each Agency head with a combined report on all operative term CBAs no less than 1 year prior to each CBAs expiration or renewal date. The report shall make recommendations concerning new or revised language the agency could seek that would better support the objectives of the Order.
3. Discussion of CBA Proposals with LRG. Agencies must designate a point of contact to work with OPM to provide term CBAs, sample proposal and counter-proposal language on significant matters proposed for inclusion in term CBAs, and analyze and discuss with OPM and the LRG the impact of various CBA provisions on agency effectiveness and efficiency, and otherwise cooperate fully with the LRG in support of its mission. The LRG Point of Contact form is attached.
Timeframes for Future Collective Bargaining
Section 5 of EO 13836 specifies that ground rules for CBAs should take 6 weeks or less to negotiate and term CBAs should take between 4 and 6 months under those ground rules. The EO states that these time periods should ordinarily be considered reasonable and satisfy the “effective and efficient” goal set forth in section 1 of the EO. The Order further requires that agency heads be notified of any negotiation lasting longer than 6 months and monthly thereafter. The Order also requires agency heads to notify the President through OPM of any negotiations lasting longer than 9 months and specifies that the entire negotiation process should take no longer than 1 year which would include, if necessary, any mediation and impasse proceedings. If an agency was already in negotiations prior to the EO being issued, the notification requirements apply only to time spent in negotiations starting May 25, 2018, (the issuance of the EO) and going forward. However, agencies already in negotiations should devote the necessary time and resources to bring these negotiations to an appropriate conclusion consistent with the policies and objectives of this EO and their obligations to negotiate in good faith. To achieve this, the EO calls on agencies to set reasonable time limits for good-faith negotiations, to call for Federal Mediation and Conciliation Service mediation of disputed issues not resolved within reasonable time limits, and, as appropriate, to promptly bring remaining issues to the Federal Service Impasses Panel for resolution.
Section 5 of EO 13836 also directs agencies, when engaged in negotiations including in ground rules bargaining, to submit written proposals and to request that employee representatives submit written proposals in order to facilitate the resolution of negotiability issues and to permit the assessment of the impact of proposals on Agency operations and management rights. It further states that if agencies have CBAs or other agreements that require bargaining in any manner other than mutual exchange of written proposals, that agencies should take steps to eliminate such agreements at the soonest possible opportunity. This would include elimination of agreements based on now-revoked Executive Order 12871 establishing Labor-Management Partnerships, and Executive Order 13522 creating Labor-Management Forums.
Section 5 of EO 13836 also directs agencies, in the event that bargaining is delayed or impeded because of an employee representative’s failure to comply with the duty to negotiate in good faith, to consider whether to file an unfair labor practice (ULP) with the Federal Labor Relations Authority or to implement a proposed change to conditions of employment. Evidence of failure to engage in good faith bargaining includes refusal to meet to bargain, refusal to meet as frequently as necessary, refusal to submit proposals or counterproposals, undue delays in bargaining, undue delays in submission of proposals or counterproposals, inadequate preparation for bargaining, and other conduct that constitutes bad-faith negotiating.
The attached form, EO 13836 POTUS Report – Status of Collective Bargaining, will be used to collect information regarding negotiations lasting longer than 9 months. Copies should be provided to the LRG by sending to LRG@opm.gov. Please refer to the Order for complete details on all agency requirements related to timeframes and procedures for future collective bargaining.
Section 6 of EO 13836 specifies that the head of each agency subject to the provisions of chapter 71 of title 5, United States Code, may not negotiate over the substance of the subjects set forth in section 7106(b)(1) of that chapter and directs agency heads to instruct subordinate officials that they may not negotiate over these same subjects.
Guidance for Implementation of Executive Order 13837 – Ensuring Transparency, Accountability, and Efficiency in Taxpayer-Funded Union Time Use
President Trump has recognized the importance of strategic workforce management, placing it at the top of his agenda for modernizing the Federal Government in key areas that will improve the ability of agencies to deliver mission outcomes, provide excellent service, and effectively steward taxpayer dollars. In support of this important effort, setting sensible standards for granting and using taxpayer-funded union time* by federal employees for labor-management relations activities is necessary to meet the needs and expectations of agencies, employees, and the ultimate customers — the American people.
Executive Order (EO) 13837, signed by the President on May 25, 2018, requires agencies subject to the Federal Service Labor-Management Relations Statute** (the Statute) to administer the Statute in a manner consistent with the requirements of an effective and efficient government, and consistent with this objective, to authorize taxpayer funded union time only in amounts that are reasonable, necessary, and in the public interest and to monitor its use to see that it is used efficiently. The EO states that agencies should not cover union expenses to a greater extent than the law requires and asserts that agencies should eliminate unrestricted grants of taxpayer funded union time. Such unrestricted grants would include grants of taxpayer-funded union time that allocate a specific portion of an employee’s tour of duty for taxpayer-funded union time (e.g. 100%, 50%). Agencies should instead carefully monitor and report taxpayer-funded union time to ensure that it is only used for authorized purposes and to make the information on these expenditures available to the public. Notably, the EO emphasizes that Executive Branch employees should spend the clear majority of their duty hours performing Federal business and serving the public.
This guidance summarizes key requirements of EO 13837 (attached).
Implementation and Renegotiation of Collective Bargaining Agreements
Section 8(a) of the EO states that the EO is to be implemented within 45 days of its issuance, except for subsection 4(b), which will be effective for employees at an agency when such agency implements the procedure required by section 5(b), to the extent permitted by law and consistent with agency obligations under CBAs in force on the date of the issuance of the EO. Agencies are to designate an official responsible for the implementation of the EO and notify OPM within 30 days of the issuance of the EO regarding the point of contact for the agency. Agencies should send the name, title, telephone number and email address for their designated official to OPM by e-mail to LRG@opm.gov as soon as possible but no later than July 13, 2018.
Section 8(b) of the EO directs agencies to consult with employee labor representatives about the implementation of the EO, on the earliest date permitted by law. It also reinforces the requirements of Section 8(a) by directing any agency with a CBA inconsistent with the EO, at the earliest moment the law permits, to give any contractually required notice of its intent to alter the terms of such agreement and either reopen negotiations and negotiate to obtain provisions consistent with the EO, or subsequently terminate such provision and implement the requirements of the EO, as applicable under law. EOs possess the force of government-wide rules. Therefore, provisions of the EO are effective on the date the CBA expires or rolls over, whether or not the CBA is reopened for negotiations. Nonetheless, agencies are encouraged to consult with legal counsel and offices of labor relations on questions relating to appropriate implementation of the EO. This consultation would include questions about how to implement the provisions of the EO that conflict with an existing and currently effective CBA.
Standards for Reasonable and Efficient Taxpayer-Funded Union Time Usage
Section 3(a) of EO 13837 sets forth standards agencies must follow in negotiating with unions for taxpayer-funded union time. Section 3 states that no agency shall agree to authorize taxpayer-funded union time unless such time is reasonable, necessary, in the public interest, and consistent with effective and efficient Government. It further clarifies, taking into account the size of the bargaining unit and the amount of time anticipated to be granted under sections 7131(a) and 7131(c) of the Statute, that agencies should take the view in collective bargaining negotiations that taxpayer-funded union time is not ordinarily considered to be reasonable, necessary, in the public interest, or consistent with effective and efficient Government where the taxpayer-funded union time rate in any bargaining unit exceeds 1 hour per bargaining unit employee. Agencies must also commit the time and resources needed to achieve that goal and to fulfill their duty to bargain in good faith. “Union time rate” is defined in Section 2(j) of the EO as the ratio of (i) the total number of duty hours in a fiscal year that employees in a bargaining unit used for taxpayer-funded union time, to (ii) the number of full-time equivalent employees in the bargaining unit. In meeting the requirements of Section 3 of the EO, the Office of Personnel Management (OPM) recommends that each agency assess its union time rate for previous years to assist in making appropriate adjustments on authorization and use of taxpayer-funded union time going forward, which should occur at the earliest practicable date permitted by law and subject to appropriate collective bargaining obligations.
Subject to section 5(b) and section 8 of EO 13837, agencies shall take steps to modify CBAs and other agreements at the soonest permissible opportunity to ensure that unrestricted grants of taxpayer-funded union time are eliminated and that agencies have mechanisms in place to ensure that employees request and receive specific authorization prior to utilizing taxpayer-funded union time and to carefully monitor taxpayer-funded union time to ensure that it is used only for authorized purposes.
Section 3(b) of EO 13837 requires an agency head to report to the President through the Director of OPM when an agency agrees, under section 7131(d) of title 5, United States Code, to authorize amounts of taxpayer-funded union time that would cause the union time rate to exceed one hour per bargaining unit employee (or proposes to do so in negotiation impasse proceedings). Such report shall explain why such expenditures are reasonable, necessary, and in the public interest, describe the benefit (if any) the public will receive from the activities conducted by employees on such taxpayer-funded union time, and identify the total cost of such time to the agency. This reporting duty cannot be delegated. Agency reports on this matter may be submitted to the OPM Director via electronic mail at LRG@opm.gov.
Subsection 3(b)(ii) further directs each agency head to require relevant subordinate agency officials to inform the agency head 5 business days in advance of presenting or accepting a proposal that would result in a union time rate of greater than 1 hour for any bargaining unit, if the subordinate agency officials anticipate they will present or agree to such a provision. This reporting requirement does not apply to any union time rate resulting from an order received in impasse proceedings or interest arbitration, provided that the agency had proposed to establish a union time rate of 1 hour or less.
Employee Conduct with Regard to Agency Time and Resources
Section 4 of EO 13837 sets forth new requirements and restrictions for employees regarding the use of paid time and government property to ensure taxpayer monies are being spent effectively. Notably, Section 4:
1. prohibits employees from engaging in lobbying activities during paid time, except in their official capacities as an employee;
2. subject to section 4(a)(ii)(2) and (3) of the EO, requires employees to spend at least three-quarters of their paid time, measured each fiscal year, performing agency business or attending necessary agency training, in order to develop and maintain the skills necessary to perform their agency duties efficiently and effectively. For purposes of Fiscal Year 2018, agencies shall apply these requirements for paid time from July 9, 2018, through September 30, 2018;
3. prohibits employees acting on behalf of a Federal labor organization from receiving free or discounted use of government property or any other agency resources if such free or discounted use is not generally available for non-agency business by employees when acting on behalf of non-Federal organizations. Such property and resources include office or meeting space, reserved parking spaces, phones, computers, and computer systems. If such free or discounted use is not generally available, then agencies should take immediate steps on or after July 9, 2018, to discontinue providing free or discounted use or receive appropriate reimbursement from the labor organization for such free or discounted use, to the extent authorized by law or regulation;
4. prohibits reimbursement to employees for expenses incurred performing non-agency business, unless required by law or regulation;
5. except as otherwise authorized by law or regulation and subject to exceptions in section 4(a)(v)(2), prohibits use of taxpayer-funded union time to prepare or pursue grievances under procedures negotiated pursuant to section 7121 of title 5, United States Code, except where such use is otherwise authorized by law or regulation. Employees may use taxpayer-funded union time to prepare for, confer with their union representative regarding, or present a grievance brought on the employee’s own behalf or to appear as a witness in any grievance proceeding. Employees may not, however, use official time to prepare or pursue grievances on another employee’s behalf. Individual employees may also use taxpayer-funded union time to challenge an adverse personnel action taken against the employee in retaliation for engaging in federal protected whistleblower activity.
Unless specified by a different deadline, the requirements in section 4 take effect on July 9, 2018. In agencies with CBAs that conflict with these requirements, the provisions of the EO become effective on the date the CBA expires or rolls over, whether or not the CBA is reopened for negotiations or if a CBA contains a reopener provision permitting the EO to be immediately effective during the term of an agreement.
Section 4(c) provides that OPM will examine existing regulations to identify inconsistencies with the requirements and restrictions outlined in Section 4 of the EO within 45 days of the date of the issuance of the EO. As applicable, OPM will propose new or revised regulations for notice and public comment as soon as practicable to assist agencies in ensuring compliance with these requirements and restrictions as related to the use of taxpayer-funded union time. Review of current regulations is well underway.
While any forthcoming proposed regulations from OPM may offer some more details on these new requirements and restrictions, agencies are reminded of these new EO requirements and restrictions and should make appropriate adjustments on authorization and use of taxpayer-funded union time, at the earliest practicable date permitted by law and subject to appropriate collective bargaining obligations and to the extent consistent with applicable law. Please refer to the attached EO for complete details on these new requirements and restrictions.
Preventing Unlawful or Unauthorized Expenditures
Section 5(a) of the EO addresses authorization requirements and the misuse of taxpayer-funded union time. Specifically, it notes that the use of taxpayer-funded union time by any employee without advanced written agency authorization (as required by Section 4(b) of the EO), or for purposes not specifically authorized by the agency is to be considered an absence without leave and subjects the employee to appropriate disciplinary action. The EO further highlights that repeated misuse of taxpayer-funded union time may constitute serious misconduct impairing the efficiency of the Federal service. In such instances, the EO directs agencies to take appropriate disciplinary action to address such misconduct.
Subject to section 5(b) and section 8 of EO 13837, agencies should take steps to modify CBAs and other agreements at the soonest permissible opportunity to eliminate unrestricted grants of taxpayer-funded union time and put mechanisms in place that require employees to request and receive specific authorization prior to utilizing taxpayer-funded union time, and agencies should carefully monitor taxpayer-funded union time to ensure that it is used only for authorized purposes.
Section 5(b) of the EO provides that agencies are to develop and issue procedures governing authorization of taxpayer-funded union time within 180 days of the issuance of the EO, to the extent permitted by law. The procedures should require specific information as to the number of hours to be used and the specific and detailed purposes of such use. Agencies are to require authorization renewals no less than once per pay period for individuals with continuing and ongoing requests. In addition, separate advance authorizations are required for taxpayer-funded union time in excess of previously authorized hours, and for purposes for which such time was not previously authorized. To the extent such matters are already covered by existing collective bargaining agreements, OPM recommends that agencies, in consultation with appropriate legal counsel and labor relations staff, determine the earliest practicable date permitted by law to begin negotiations to bring the collective bargaining agreements into compliance with the EO.
Section 5(b) and 5(c) also require that, within 180 days of the issuance of the EO, agencies develop a monitoring system for the use of taxpayer-funded union time that requires employees to request and receive advanced, specific authorization prior to utilizing taxpayer-funded union time with specific purpose of how it will be used and further require agencies to carefully monitor and report taxpayer-funded union time to ensure that it is only used for authorized purposes.
Special attention is required by agencies to monitor any unlawful uses such as internal union business, certain lobbying activities, and political activities as defined in the EO. To the extent such matters are already covered by existing collective bargaining agreements, OPM recommends that agencies, in consultation with appropriate legal counsel and labor relations staff, determine the earliest practicable date permitted by law to seek negotiations on bringing the collective bargaining agreement into compliance with the EO.
Agency Reporting Requirements
Section 6(a) of the EO requires agencies to submit an annual report to OPM on specific detailed purposes for agency authorizations to use taxpayer-funded union time and the amount of time for each purpose; the job title and total compensation for each employee using this time in the fiscal year, as well as the total number of hours each employee spent on these activities and the proportion of each employee’s total paid hours that number represents; the total value of government property the agency allows unions or individuals on this time to use, on a free or discounted basis; and the amount of reimbursement paid by labor organizations for the use of government property.
Section 6(b) of the EO requires agencies to calculate the union time rate each fiscal year and report bargaining unit union time rates in excess of 1 hour to the Interagency Labor Relations Working Group (LRG) established pursuant to EO 13836. Section 6(c) of the EO requires agencies to explain any increases in union time rates to the LRG.
OPM will issue separate guidance on the format for all reporting requirements and establish the date for agency submissions. Please refer to the attached EO for complete details on agency reporting requirements.
Public Disclosure and Transparency
Section 7 of the EO requires OPM to develop the processes and procedures to be utilized in reporting the data on taxpayer-funded union time usage as outlined in the EO. In addition to information on taxpayer-funded union time, agencies will be required to report data related to the value of any government property the agency allows labor organizations to use on a free or discounted basis; any expenses such as travel or per diems the agency paid for activities conducted on or related to taxpayer-funded union time; the purposes for which the taxpayer-funded union time was granted; and aggregated figures reflecting the job title and total compensation of employees who used taxpayer-funded union time as well as the total number of hours spent on this time and the proportions of the employees’ paid hours that represents.
Standardized formats for agency annual reports are to be developed by OPM and shall be published by the OPM Director within 180 days of the issuance of the EO. OPM will analyze agency submissions and prepare a detailed report as outlined in the EO, to be published by June 30 of each year. The first report shall cover fiscal year 2019 and shall be published by June 30, 2020. The OPM Director, in consultation with the Chief Human Capital Officers, is authorized to promulgate any other guidance necessary to assist with compliance of the EO.
Until additional OPM guidance is issued regarding these matters, please refer to the EO for complete details on these reporting requirements for agencies.