Trump’s executive order on unions will hurt federal employees

Written by Darrell West for the Brookings Institute.

I was shocked over the weekend to learn about President Donald Trump’s crackdown on federal labor unions because I had just testified at a U.S. House Government Operations Subcommittee hearing on that very subject. During Thursday’s congressional hearing on a federal provision known as union “official time”, nothing was said about the administration’s plan to penalize federal employees the next day with an executive order ending 40 years of legislative support for the right of federal union representatives to help colleagues file grievances, address sexual harassment claims, and gain whistle-blower protection.

In 1978, when the Senate passed the Civil Service Reform Act establishing official time, it did so on an 87-1 vote and the House accepted the conference report by 365-8. According to the legislation, the U.S. government allows employees to “organize, bargain collectively, and participate through labor organizations of their own choosing in decisions which affect them”. The rationale is that such participation promotes the public interest, contributes to the effective conduct of public business, and enables the amicable settlement of disputes between employees and employers.

Section 7131 of that bill provides federal employees with “official time” to engage in representational activities, discussions of grievances, dispute resolution, labor relations training, labor-management relations, and new department initiatives, among other things. The Equal Employment Opportunity Commission implemented the legislation by adopting rulesthat “require managers and supervisors to allow complainants who are employees ‘a reasonable amount of official time, when in official duty status, to prepare their EEO complaint and to respond to agency and EEOC requests for information.’”

In one fell swoop over the Memorial Day weekend, President Trump limited federal union representatives to no more than 25 percent of their time assisting colleagues with filing grievances, addressing sexual harassment claims, and resolving workplace problems. For a president who has been the object of numerous grievance complaints and sexual harassment claims, the hypocrisy of limiting time to pursue such claims is shocking.

This executive order followed an announcement two weeks ago by U.S. Office of Personnel Management Director Jeff Pon of administration plans to reduce federal employee compensation by $143 billion through significant changes to the retirement system. The new plan would eliminate supplements for Federal Employees Retirement System (FERS) annuitants who retire before they are eligible for Social Security; base federal pension payments on five-year rather than three-year average salary; increase FERS payroll deductions by 1 percent per year until they reach 7.25 percent of base pay; reduce cost-of-living-adjustments by one-half of one percent for civil servants, and eliminate COLAs for FERS. This is on top of a pay freeze for the coming year.

As a sign of the concerted war on federal employees, there also have been several other efforts to limit unions. This year, for example, the U.S. Department of Education eliminated official time as part of its new labor contract. Organizations representing these federal employees have argued this contract is completely unfair.

In addition, Congressman Jody Hice (R-Ga.) is pushing (and the Oversight and Government Reform Committee has approved) the Official Time Reform Act which proposes major changes in the existing law. For example, it says “an employee may not be granted official time under this section for any time such employee would otherwise be in a duty status for purposes of engaging in any political activity, including lobbying activity.” Rep. Hice justified this move by arguing “official time means that the American taxpayer is forced to subsidize federal employee unions, be it filing grievances, negotiating contracts and even political activities like lobbying Congress”. The adoption of this provision would limit the First Amendment rights of federal employees and their union representatives to petition to redress grievances.

Rep. Dennis Ross (R-Fla.) has introduced HR 1293 that seeks to improve transparency regarding federal official time. But it does so by measuring the costs of official time without any effort to compute the benefits for employees and the federal government from grievances resolved, sexual harassment claims addressed, or workplace problems alleviated. Without information on costs and benefits, it is impossible to come up with a fair analysis of official time.

In my congressional testimony, I argued paid official time activities are important for labor-management relationships because they provide opportunities for employees to resolve employment disputes. I have a new Brookings Institution Press book entitled The Future of Work:  Robots, AI, and Automation in which I argue the workplace will be less productive if employees do not have meaningful ways to collaborate and address concerns. 

The Data provided by committee Republicans and Democrats demonstrate only 12,508 federal workers use official time. Of those, 92 percent (or a total of 11,527) spend less than half their government time on official time. According to congressional information, “most official time [is] used to attend meetings requested by management.”

In addition, official time provides union assistance to whistle-blowers. Federal employees often are the ones who expose waste, fraud, and abuse, yet they sometimes suffer adverse personnel actions such as demotions, denial of warranted promotions, or reassignments. Dr. Michelle Washington, for example, exposed abuses at Veterans Administration hospitals, yet was demoted for her efforts on behalf of veterans suffering from mental or emotional traumas.

The congressional hearing at which I testified last week was openly hostile to federal employees and their public sector unions. The subcommittee chair, Rep. Mark Meadows (R-N.C.), was elected in 2012 on a Tea Party platform. He wants to downsize government and serves as chairman of the conservative Freedom Caucus.

The Republican-called witnesses explained why they thought federal unions served no public purpose, why labor representatives did not need official time to help their members deal with workplace problems, and how official time spent on grievances and harassment complaints represented a taxpayer rip-off. I explained that sexual harassment was a problem in the workplace and federal employees needed help in filing grievances and resolving disputes. “Unions often are the first line of defense for those individuals,” I argued.

At that point, the whole tenor of the hearing changed. In 2014, there had been allegations from several female staff members of inappropriate behavior in Congressman Meadow’s office involving his then chief of staff, Kenny West. After hearing my mention of sexual harassment, Congressman Meadows turned to me and announced, “Mr. West, let me come directly to you because in your opening testimony, I was listening very closely.” A cold chill went up my backbone because I knew I was about to become subject to a “Perry Mason”-style legal grilling.

He started with a seemingly innocuous question. “You would agree we have no idea whether official time has increased or decreased?” he asked. “That is correct,” I said. “If it is a good thing, shouldn’t we have more of it?” I replied that in order to assess that premise, we need better data on costs (which Republicans liked to emphasize) but also benefits (which GOP legislators rarely acknowledge). From my standpoint, there should be documentation of the positive assistance union representatives provide their fellow workers, not just the time they take to perform those tasks.

Meadows then moved in for the frontal assault. His view was that union representatives were highly problematic for the federal government and had little accountability for their actions. “Those people on 100 percent official time, do you believe they have the same accountability as someone who may be on 25 percent official time to their supervisors?” he said. I responded that the statute required supervisor approval for official time so if the supervisor approved the time request, there was accountability.

Not liking that answer, he shifted to an attack. “What quantifiable data do you have to back up that claim, Mr. West?” Continuing, he asked, “Do you have anything from Brookings that would prove that?” I started to answer, but he cut me off with the dismissive remark, “I’m not asking your sense, I am asking for real data to back up your claim.”

The criticism continued for several minutes with persistent follow-ups, interruptions, and efforts to discredit my testimony. At the end, he clearly was frustrated and loudly proclaimed, “I can see this line of questioning is not producing any real results for me or Mr. West so I will yield my time.”

At that point, I realized the whole point of the hearing was to make federal unions look bad. I do not know whether Congressman Meadows knew of Trump’s impending move the next day against labor unions. There was no mention of the possible executive order or a request for feedback on its provisions, even though that is one of the key purposes of legislative hearings. The tenor of that conversation one day before Trump’s executive order focused almost entirely on creating a negative narrative against public sector unions. The president’s executive order moved the attack on federal unions to a much higher level.