NO RIGHT TO DO IT? NO PROBLEM: Although a Federal Judge nine months ago ruled that President Trump’s executive order restricting the rights of Federal unions to represent their members was unconstitutional, Federal agencies have continued to intrude upon union prerogatives, partly by filing for contract impasses right after negotiations begin and counting on what is supposed to be a neutral panel to impose terms stacked in favor of management.

A year after President Trump issued executive orders to deny more than two million Federal workers their right to union representation that were subsequently ruled unconstitutional, the administration has adopted a tactic that accomplishes the same goal, union officials charged.

According to David Cann, director of bargaining for the American Federation of Government Employees, Federal agencies are cutting negotiations short and rushing to declare impasses so the Federal Service Impasse Panel can assume control of the process, then “rubber-stamp” management’s contract proposals.

Stripping Employee Benefits

Mr. Cann said that strategy has cleared the way for a “scorched-earth strategy” by Federal management to impose contracts that “take out root and stem, all of the negotiated benefits that had been bargained for over the life of the union in the workplace.”

The FSIP is supposed to act as an impartial body but has the power to impose “contract terms through a final action,” according to its website. “The parties may not appeal the merits of the Panel's decision to any court.”

“Like we saw with Health and Human Services, they negotiate for one day before they declared an impasse for a term agreement, something that normally would take more negotiations than that, and they were able to get a scorched-earth contract rubber-stamped,” Mr. Cann said.

Scrapping Telecommuting

He said the Trump administration was particularly intent on eliminating the option for tens of thousands of Federal employees to work from home, or telecommuting. That option had bipartisan support for years, regardless of which political party controlled the White House or Congress. It was perceived as good public policy because it reduced traffic congestion, saved the government money on office space and cut air pollution while promoting better work/life balance.

“They are trying to get rid of it everywhere,” Mr. Cann said. “And the part that is crazy about that is that [historically] there have been dozens of initiatives which come from executive orders and some of which come from Federal regulations, which are telling the government and the General Services Administration to limit their [physical] footprint, and there are entire agencies where if they get rid of teleworking, they won’t be able to accommodate the employees that they have.”

He continued, “Making these jobs unworkable and making these agencies ineffective is a goal in and of itself when a part of what you are trying to do is snuff out the work of the Federal workforce, making it so that government doesn’t serve Americans.”

Politicized Board 

The members of the FSIP serve at the pleasure of the President and do not require Senate confirmation. In May 2017, Mr. Trump fired the entire panel and replaced them with former members who served on the FSIP during the George W. Bush administration or have been affiliated with right-wing and anti-union think tanks like the Goldwater Institute, Americans for Limited Government, the American Legislative Exchange Council, the Fairness Center, and the Heritage Foundation.

An email seeking comment from the agency did not get a response by press time. 

U.S. District Judge Ketanji Brown Jackson of the District of Columbia ruled in August 2018 that the Trump Administration’s May 25, 2018 executive orders, including one that targeted official time, violated the 1st Amendment to the U.S. Constitution and the separation of powers.

Official time refers to the long-standing labor/management arrangement which permits union reps, who are also on-the-clock Federal employees, to get paid release time to handle grievances and other issues raised by rank-and-file members.

Goes Back 55-Plus Years

Mr. Trump’s orders would have seriously hindered the Federal unions from representing workers as they have since President John Kennedy signed off on the Federal workforce getting collective-bargaining rights.

Yet, as Judge Jackson’s ruling winds its way through the appeals process, the Federal News Service reported earlier this month that those executive orders were continuing to guide Federal agencies in undermining the standing of the unions in the workplace.

“The executive orders, which President Donald Trump signed last May, prompted agencies with soon-to-be or expired collective bargaining agreements to begin charging federal unions rent to use government office space,” the FNS reported. “Some agencies imposed limits on unions’ use of official time.”

Cheri Cannon, an attorney at Tully Rinckey who represents Federal workers, told the FNS that the executive orders had transformed the relationship between agency management and the workforce.

‘Taking a Harder Line’

“We’re seeing an effect on some agencies with how long the performance improvement periods are,” she told FNS. “They are obviously taking a harder line. We have seen an uptick, quite frankly, in disciplinary actions across the board. Every week we get new cases of people being fired all over the government. Whereas before, people were being fired, [but] it just wasn’t at the pace we’re seeing.”

As the management-union relationship becomes increasingly adversarial during Mr. Trump’s tenure, the AFGE reported it continued to attract new members.

Under the ground rules established in the 1960s which cleared the way for Federal workers to organize, unions have to operate as open shops where membership is voluntary. AFGE represents close to 600,000 Federal workers.

On May 9, employees at the U.S. Department of Agriculture’s Economic Research Service voted overwhelmingly to join the union, with 138 in favor and 4 opposed.

‘Want Seat at Table' 

“By joining AFGE, employees at the Economic Research Service are using their collective voice to demand a seat at the table when decisions are made that affect their jobs,” union President J. David Cox Sr. said in a statement.

Mr. Cox continued, “Under the Trump Administration, the USDA is suppressing the publication of scientific research that ERS employees conduct and has proposed upending employees’ lives by relocating the agency outside the nation’s capital. ERS employees have done the right thing by organizing a strong union so that they will be more effective in defending the important work they do on the public’s behalf.”

The new unit includes 204 economists, analysts, and other ERS employees who were previously unrepresented. Roughly 235 employees at another USDA agency, the National Institute of Food and Agriculture (NIFA), also will vote soon on whether to join AFGE.

Even though Federal unions are prohibited from bargaining over wages, which are set by Congress, once Federal workers opt for representation at a worksite, the agency is required to notify workers “in advance of any proposed changes to their working conditions and to bargain with the union in good faith over those proposed changes,” according to the AFGE.

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