US agencies curb federal workers’ rights after unions’ court defeat

By on 20/11/2019
The US secretary of veterans affairs, Robert Wilkie, with president Trump. (Image courtesy: Department of Veterans Affairs).

Union representatives at the US Veterans Affairs Department (VA) are having their representative work dramatically curtailed and face eviction if they don’t start paying rent on office space at the agency, as federal bodies begin implementing president Trump’s controversial executive orders. And in a linked development, US unions have raised the alarm over proposed changes at the federal body responsible for investigating cases of workplace discrimination.

The VA will restrict federal employee union officials’ ability to conduct representational duties during work hours, it announced on Friday. Representatives have been told that they will have to request and receive written approval before undertaking union work; that they cannot spend more than 25% of their time on union work; and that they will not be allowed to provide assistance to VA employees pursuing adverse action appeals or grievances against the department.   

The VA will not approve “taxpayer-funded union time for preparing or pursuing grievances, including arbitration, on behalf of bargaining unit employees, except where such use is otherwise authorised by law or regulation,” it said.

In addition, union employees – who currently have free access to office space at agency facilities across the country – will have to begin paying the VA rent by 31 January 2020 or vacate their offices. The department has not yet informed unions of the rental costs but will do so next month.

According to the agency, the changes will help save the taxpayers money – either by generating revenue from rent-paying unions, or by freeing up office space for other uses. It also said that the US$49m it paid employees on official time could be spent on other priorities such as suicide prevention, Government Executive reported.

“Common sense dictates that VA employees’ main focus should be providing veterans the best possible care, benefits and customer service,” VA secretary Robert Wilkie said last week. “At the same time, unions using VA facilities should have to pay their fair share. These executive orders will help ensure that’s the case.”

Trump’s executive orders

The three executive orders which prompted VA’s rules change were signed by president Trump in May 2018. As well as seeking to weaken unions’ clout, they also make it easier for agencies to fire federal employees – for example, by shortening performance improvement plans to 30 days.  

Two federal unions launched legal proceedings challenging the orders and in August last year, a district court judge quashed key tenets of the orders, ruling that together they “eviscerated” federal employees’ bargaining rights and that the White House had exceeded its powers by issuing them.

However, the Trump administration appealed against the ruling, and on 16 July a three-judge panel overturned the earlier decision, prompting the Office of Personnel Management (OPM) to give agencies the go-ahead to implement the orders and offer guidance on how to introduce them.

OPM instructed agencies to renegotiate collective bargaining agreements at the “earliest date permitted by law” and to consult with their legal offices about putting in place provisions of the orders that conflict with existing contracts, according to Government Executive. OPM director Dale Cabaniss said last month that further guidance will be forthcoming, but that in the meantime agencies “should immediately review the executive orders to ensure that they are fully compliant with all requirements or are taking steps to become compliant with requirements at the soonest feasible opportunity”.  

The American Federation of Government Employees (AFGE), which represents most VA employees, has warned that the provisions of its previous contract remain in effect and that any effort to unwind them without further negotiation will be met with a legal challenge, Government Executive reported.

Alma Lee, president of AFGE’s National VA council, said the union will call for negotiations, and asked members to begin preserving all records in case they are eventually denied access to their offices. 

“This is a punitive and illegal action that’s intended to silence employees and discourage them from reporting mismanagement or other abuses that harm veterans’ care,” Lee said. “We will pursue any and all legal options at the national and local levels to challenge this illegal activity and preserve employees’ collective bargaining rights.”

Official time under threat  

Meanwhile, the Equal Employment Opportunity Commission (EEOC) – which handles accusations of employment discrimination, both at federal agencies and in the private sector – is preparing to publish a proposed rule that would exempt federal employee union officials across government from being guaranteed official time to support staff taking complaints to the EEOC. The move would upend more than 40 years of precedent and could violate the statute establishing the commission, according to Government Executive.

In an internal draft of a rules change obtained by Government Executive, the commission argues that it should defer to individual agencies’ collective bargaining agreements regarding whether a union representative should receive official time.

The draft rule could effectively deny union representatives at government agencies the right to spend official time working on EEOC complaints, while allowing the colleagues and friends of complainants to access official time while doing very similar work.

If implemented, Government Executive points out that the rule change would amount to the end of union officials’ ability to represent employees in adverse personnel action cases without taking leave without pay.

Rights denied

In a statement, the National Federation of Federal Employees (NFFE), said: “The Equal Employment Opportunity (EEO) process in the federal sector can be confusing and technical… federal workers who serve as union stewards and officers are knowledgeable about their agency’s EEO processes and have experience assisting their fellow bargaining unit employees that have faced discrimination on the job. This proposed rule harms federal workers because it denies them the right to choose their union representatives to help them solve their problems with discrimination at the workplace – at no cost.”

It said workers may instead need to seek the assistance of expensive outside attorneys “who can cause undue delay and frustrate the early stages of solving a discrimination issue”.

Jefferson Friday, general counsel at the NFFE told Global Government Forum that, if implemented, the rule “would to be very troublesome in that it makes it more difficult for employees to seek justice to remedy workplace discrimination, as well as singling out and discriminating against employees based on union affiliation”.

He referred to the NFFE statement, which said: “Federal workers will be discriminated against on the basis of their union participation which has illegal, chilling effects on the rights of federal employees to collectively bargain and engage in protected concerted activity. The proposed rule also has damning implications for First Amendment issues of the freedom to associate and freedoms of speech.”

Friday told Global Government Forum the NFFE “strenuously object” to the proposed rule and will seek to prevent it from being implemented.

About Mia Hunt

Mia is a journalist and editor with a background in covering commercial property, having been market reports and supplements editor at trade title Property Week and deputy editor of Shopping Centre magazine, now known as Retail Destination. She has also undertaken freelance work for several publications including the preview magazine of international trade show, MAPIC, and TES Global (formerly the Times Educational Supplement) and has produced a white paper on energy efficiency in business for E.ON. Between 2014 and 2016, she was a member of the Revo Customer Experience Committee and an ACE Awards judge. Mia graduated from Kingston University with a first-class degree in journalism and was part of the team that produced The River newspaper, which won Publication of the Year at the Guardian Student Media Awards in 2010.

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