Another Union Win: OPM Orders Agencies to Comply with Court Ruling on Executive Orders
September 04, 2018
As a direct result of our union's leadership in the lawsuit against three union-busting, democracy-busting executive orders, and the resulting injunction we won in court, the Office of Personnel Management has ordered agencies to comply with the judge’s ruling and restore employees’ legal right to representation.
This is a huge victory for AFGE members, all working people, and every American who believes in a functional, efficient civil service.
“AFGE is proud to have led the way in this legal victory for federal employees and the unions that represent them,” said AFGE President J. David Cox Sr. “We are continually resolved in our conviction to protect and preserve critical government services and functions for all Americans. We will not let up this fight until all federal employees are given the workplace protections and conditions they deserve.”
Judge Ketanji Brown Jackson of the U.S. District Court for the District of Columbia ruled Aug. 24 that the Trump administration’s May 25 executive order on official time violated the U.S. Constitution and the separation of powers as established in law by attempting to deny more than 2 million federal workers their legal right to representation.
Some VA facilities immediately restored official time following the court ruling
After Trump signed the executive orders, agencies including the Social Security Administration (SSA) and Department of Veterans Affairs (VA) issued similar edicts in an attempt to eradicate unions from the federal workplace and deny workers their legal right to representation. They kicked union reps out of their offices and prohibited them from using official time to fight injustice in the workplace.
After the court ruling, some VA facilities immediately restored official time for union reps and returned them to their union offices. The majority, however, did not, saying they were waiting for guidance from VA Central Office.
Our union’s National VA Council subsequently reached out to VA Central Office requesting reinstatement of official time for all Local union representatives. The central office told the council it was waiting for guidance from OPM.
Before OPM issued its guidance Aug. 29, SSA appeared to be continuing implementation of the EOs despite the court ruling.
At the Department of Defense, after the EOs were issued, there had been a couple of local/agency attempts to roll out parts of the EOs, but it was overall very limited as they had been largely waiting for the outcome of the lawsuits.
Why we need to protect official time
Official time is a practice in which federal managers and employees work together to make government more efficient, productive, and just. All federal employees, whether they belong to a union or not, are guaranteed the right to fair representation. Employees who volunteer to serve as union representatives are allowed certain hours in their work days to carry out those representational activities.
Read more about how official time is used here.
What agencies must do right now
The judge struck down major provisions of the administration executive order on official time. This means agencies are prohibited from implementing the following provisions of the EOs:
- The imposition of a 25% cap on the use of official time.
- The prohibition against employees’ right to petition and communicate with Congress.
- The ban on the use of official time by union representatives to prepare and present grievances.
- The one-hour per bargaining unit employee formula to be applied to set an aggregate cap on the use of official time.
- The limitations placed on unions’ use of agency facilities, such as office space and computers.
- The exclusion of challenges to performance ratings and incentive pay from the scope of the negotiated grievance procedure.
- The limitation of performance improvement periods (PIPs) to 30 days, with agencies alone having the discretion to apply longer periods.
- The direction to agencies to press for the exclusion of removals from the scope of the negotiated grievance procedure.
- The prohibition against bargaining over the “permissive” subjects.
- The limitation on ground rules bargaining to six weeks, and the limitation on bargaining term agreements to six months.
- The prohibition on bargaining approaches other than written proposals. (IBB, etc.).
- The prohibition on reimbursement for non-agency business.
- The prohibition on using official time without advanced notice.
Provisions still in effect:
- Direction to agency management to implement general goals set out in Section 1, and reporting requirements for negotiations that last longer than six months.
- Direction to agency management to file ULPs for bad-faith bargaining.
- Discipline for official time abuse.
- Develop procedure for official time usage.
- Requirement to report official time authorized over the 1hour formula.
- Agencies should not be required to use progressive discipline.
- Agencies are not prohibited from removing an employee simply because they did not remove a different employee for comparable conduct.
- Issue decisions within 15 days of proposal when practicable.
- Agencies should not limit discretion on using Chapter 75 for performance removals.
- Agencies should not limit discretion to require the use of Chapter 43 procedures before removing an employee.
- Agencies should not limit discretion on removals to require the use of progressive discipline.
- Prohibition on clean records.
- Data collection.
AFGE has a separate lawsuit still pending on two of the EOs: 13,839 Removal Procedures and 13,836 Collective Bargaining. That litigation could have an impact on some of the provisions of those two Executive Orders.
Need more information about our work fighting the illegal EOs? Click here.
