The Presidential and Executive Assault on the Civil Service
Disclosure: The author is an employee of the Social Security Administration and a union representative of the American Federation of Government Employees (AFGE) Local 3239. A formal inquiry was sent to the Office of Special Council (OSC) regarding whether an article such as this would violate the Hatch Act and OSC responded that regardless of other content on the site, this would not violate the Hatch Act so long as the article itself does not advocate for or against any candidate, party, or partisan group.
“Among other things, the Hatch Act prohibits a federal employee from using her title or position to engage in political activity. The Hatch Act restriction concerning the use one’s official position only applies when used at the time of the political activity. For example, if you are writing an article endorsing a candidate you may not use your official title or position in the endorsement article. However, it does not prohibit a federal employee from using her official title or position in a nonpartisan article and subsequently writing a partisan article where the official title or position is not used.”
On May 25, 2018, Donald Trump, President of the United States, issued three executive orders: 13836, 13837, and 13839. It is harder to track these orders than under recent administrations due to the fact that the Trump White House has decided to lump all presidential actions together with an ability to filter them by subject, but not type of order, and they don’t number them on the website. As will be explained later, government agencies have also decided to immediately and illegally go beyond the constraints of these executive orders.
Presidents, from both major parties and parties long extinct, are infamous for trying to increase presidential power. The Hoover Institution at Stanford University covers this (including how the civil service decreased presidential power) in detail. Hell, Andrew Jackson once famously declared, in reaction to the Supreme Court order, “John Marshall has made his decision; now let him enforce it.” In this light, it is not by any means unique for Donald Trump to attempt to increase presidential power; yet it is a distinct threat in the means he intends to increase it.
At first look, these executive orders seem firmly to threaten one group: bargaining unit employees of the federal government. However, through many years of fighting in Washington, we, as a nation, seem to have forgotten who these employees are: the civil service. Moreover, we have forgotten the historical and political importance of the civil service in the United States.
Prior to the institution of a civil service, federal jobs followed a patronage system which we in the United States referred to as a spoils system. If the presidency changed hands from one party to another, the entirety of the ranks of federal employees also switched to inexperienced appointees loyal to the president and his party. This, of course, was an era where federal jobs truely did pay well, unlike today, because they were rewards to those who helped you get elected, much like a medieval king granted ranks of nobility to those men who helped him obtain or maintain his throne. Dependent upon the president for their sustenance (and oddly he dependent upon them due to mandatory political contributions), they did what the president told them, not what Congress wrote into law.
However, the Pendleton Act of 1883 created the civil service, which protected federal employees from sudden dismissal due to a change in the presidency – notably for the purposes of efficiency. As time went on, the proportion of the executive branch that was part of the civil service grew as presidents wanted to ensure their appointees were not stripped of their titles after they left office and as time passed even further the agencies were depoliticized. Rather than unqualified political lackeys looking to cash in, the federal government began to be staffed by educated career bureaucrats who could excel at their jobs and whose interests were not pushing the president’s agenda but neutrally enforcing the laws of the United States.
Whether he realizes it or not, the civil service is threatened by the recent push by Donald Trump to strip federal workers of their protections. The neutrality of federal workers comes from the fact that they cannot be arbitrarily removed from office – they are there so long as they do their job properly. If your manager has a personal problem with you, tough shit, they can make life hard, they can keep you away from opportunities to move up, but they can’t just let you go if you’re still doing your job. Protections are in place to ensure that if a federal employee does what is right in the face of adversity, they aren’t going to lose their job if they were justified in that.
Let us take a peek at an Obama era scandal – a division of the IRS began began looking primarily at organizations with 501(c)(4) status that included Republican-aligned key words in their name to further screen them for political activity that could result in them from losing the status. No one actually lost their status, but they were profiled and asked more questions than everyone else. Do you happen to be a Republican who was upset by this?
Well, let us discuss this same scandal with a few changes. In this case, let us suppose that President Obama was pressuring the IRS to strip the status from groups he feels are opposed to him – in reality this does not seem to be the case. Let us also suppose that these workers aren’t safe in their jobs and their bosses may fire them for refusing to take action against a group thought to align with the Republican Party – and if that boss doesn’t they may be fired and be replaced by someone who will. Rather than just extra questioning, the groups would have all lost their status because either those employees or the ones that replaced them after they were fired would have done what they were told to keep their jobs. That is the difference between a spoils system and a civil service.
It is already disturbing enough that the Milgram Experiment has shown us that most of us would do atrocious things under pressure when being ordered by someone we view as an authority figure. If you aren’t familiar, subjects were told to give increasingly powerful shocks of electricity to someone being tested until the final shock left them unconscious – of course the shocks themselves were faked, the subjects just didn’t know that. Two thirds were prompted to issue the final shock – and these were people without their livelihoods on the line. This was prompted by the stories of Nazi war criminals who kept saying they were just following orders – imagine if a president ordered federal employees to commit war crimes or to do something brashly unconstitutional like seize everyone’s guns – they’re going to be much more likely to follow orders if their livelihoods are on the line.
Myself, I’ve been a pain to managers in the past – I knew the rules didn’t authorize an action – and I have had managers send up for policy guidance to force me only to get word back that I was right – or that we had to take an action to reverse another because we didn’t give the person their constitutional due process rights – and I did that because I knew I was safe because I was following the rules. If I could just be let go arbitrarily, I can also guarantee you that I wouldn’t have stood up because nothing rose to a moral standard where I would be willing to give up my livelihood for the rights of another.
Now that I have stressed the importance of these civil service protections, it’s time to get into the specifics about how they are threatened by these executive orders. But I first have a point to make about the basis of these orders.
In order 13836, it states:
The Federal Employee Viewpoint Survey has consistently found that less than one-third of Federal employees believe that the Government deals with poor performers effectively.
Usually a portion of employees are randomly chosen to answer the survey – in 12 years of service I have not been chosen once – a probability of just over 4% as I calculated recently. However, there were two years when all employees were invited, and so I did answer that question myself, twice, along with many others.
The statement is actually rated, and the most recent results from 2017 show those who answered negatively (disagree or strongly disagree) with “[i]n my work unit, steps are taken to deal with a poor performer who cannot or will not improve” is only 42%. There was the option of neutrality – 31% were positive, 27% were neutral. The two times I took it, neither of which happen to be 2017, I answered that negatively as well – but my thoughts were not on fellow bargaining unit employees, but management. I have met managers who are unethical, I have met managers who are inept, and I have met managers who are on wild ego trips. The employee who doesn’t perform and isn’t run out soon thereafter is an aberration – the manager who doesn’t perform and yet is celebrated is the norm, not the exception.
Similar negative statements that correlate to this are:
36% negative Promotions in my work unit are based on merit.
35% negative – How satisfied are you with your opportunity to get a better job in your organization?
32% negative – In my organization, senior leaders generate high levels of motivation and commitment in the workforce. –
31% negative – Creativity and innovation are rewarded.
31% negative – I believe the results of this survey will be used to make my agency a better place to work.
What I can guarantee you of is the primary focus of federal employees is not that they feel that not enough people are being fired – it is that they are feeling neglected and underappreciated with low morale. Only 68% were satisfied with their job and only 61% with their pay.
What the Executive Orders Do
Back in March, I wrote about the assault on federal workers at the Department of Education, the agency illegally placed a contract on workers without bargaining it and had the gall to call it a Collective Bargaining Agreement. At that time I pointed to some indications that similar actions could be on the horizon in other federal agencies as well. Three months later, that is exactly what we are seeing. The executive orders have significant overlap with the illegal contract forced upon employees of the Department of Education suggesting that either it was done at the direction of the Trump Administration, who may have seen it as a pilot case for public outrage, or Trump was inspired by the illegal contract and decided to emulate it across the federal government. It is not certain which took place, but it is unreasonable to think that neither is the case.
While the executive orders are ultimately dangerous, for a large part because agencies are broadly interpreting them to be mandates rather than what they are, the orders themselves are mostly toothless because legally they can’t have very strong teeth or they would override the powers of Congress and the laws which have been passed. While written in different language, suggesting three different authors, each of the orders explicitly states that the order does not nullify any existing collective bargaining agreement:
13836 Section 9.c: Nothing in this order shall abrogate any CBA in effect on the date of this order.
13837 Section 9.a: Nothing in this order shall abrogate any collective bargaining agreement in effect on the date of this order.
13839 Section 8.b: Agencies shall consult with employee labor representatives about implementation of this order. Nothing in this order shall abrogate any collective bargaining agreement in effect on the date of this order.
As you may have guessed from context, abrogate essentially means nullify, or as a dictionary put it: to repeal or do away with.
But before we discuss exactly how agencies are starting to abrogate collective bargaining agreements, we want to go into detail about what is actually included in the orders. This can be generally be described as: defining management starting positions in bargaining, restating nonbargainable issues written into law, creating requirements for agency heads to make detailed written reports to the President, and creating an interagency workforce for the purpose of collusion to tip the scales of negotiation in management’s favor.
Executive Order 13836: Developing Efficient, Effective, and Cost-Reducing Approaches to Federal Sector Collective Bargaining
This is the least objectionable of the three executive orders and contains information regarding the creation of the Labor Relations Group and describes what it does. Like other orders, it does recoin a term that is written into law: official time. Official time is the time in which a union official is acting in an official capacity as a union official – it is paid time. Trump decided to coin the term “taxpayer-funded union time” which is a term which creates an irrational distaste to the reader – another term someone might call it could be governmental integrity defense time, which would create the opposite effect in the reader, but that would be similarly, inappropriately emotionally charged.
It creates the Labor Relations Group which consists of the director of the Office of Personnel Management (OPM) and representatives from the participating federal agencies and any agency with at least a thousand employees is required to participate. This does create a pro-management bias for the OPM Director, whereas OPM has a neutral role to play in the government, and is supposed to gather information to assist management’s stance in negotiations, develop a model for ground rules for negotiations which benefit management, analyzing active collective bargaining agreements for ways they can retroactively state that they infringe on management rights, share information between agencies on how to bargain more effectively, establish ongoing communications with agencies whose employees are represented by the same union, and some more empty language encouraging collusion. The director is required to report proposing recommendations to the president on how to improve this within 18 months of the first meeting.
The order also requires any agency which has unionized employees to prepare a report at least a year prior to a contract’s expiration suggesting new or revised language for renegotiation and effectively prohibiting disclosure of any of these documents to the union or any appointed attorney under US Code 7114(b)(4)(C) which states agencies need not disclose information to unions “which does not constitute guidance, advice, counsel, or training provided for management officials or supervisors, relating to collective bargaining.” It is questionable whether intended language can be considered “guidance and advice” as it is language, not information on how to get that language input, so this part could be struck down and it certainly establishes a violation of the legal requirement to bargain in good faith a priori.
It should be noted that Section 4.b.iii does specify that management is supposed to “make every effort to secure a CBA that meets these objectives,” and the order does not require that those objectives be met. It is presumed they are only supposed to make legal efforts, not illegal efforts.
It requires that agencies attempt to bargain for a period of 6 weeks or less on establishing ground rules for bargaining the contract and for a period of 4 to 6 months for the contract itself, immediately invoke mediators after the period, then submitting any remaining issues for impasse proceedings – that is where the Federal Labor Relations Board is supposed to resolve issues where no progress is being made in the two sides agreeing. They are also required to reject such requests is the inability to make progress is not demonstrated so this will likely either result in more delays or the Board determining that management is systematically failing to bargain in good faith and siding with the Union.
In order to do this, management is to commit all the taxpayer-funded unionbusting time and resources needed – okay, it doesn’t use that term but it makes a point that it’s all funded by taxpayers without the limits placed on unions.
It also prompts agencies to eliminate any form of bargaining outside of written exchange – verbal exchange being something that is necessary for good faith bargaining by promoting understanding.
The order takes US Code 7106 which enumerates management rights and focuses on subsection b.1. The law expressly does not forbid bargaining “on the numbers, types, and grades of employees or positions assigned to any organizational subdivision, work project, or tour of duty, or on the technology, methods, and means of performing work.” However, it does make bargaining on these issues subject to the approval of the agency – Trump is ordering them to not approve bargaining on these issues. He further orders agencies to review if points 2 and 3, which are not up to agency discretion, are at all covered by the collective bargaining agreement and orders them not to bargain on them if they are. For the most part, that is obvious, though there are cases where these are still bargainable issues, most obviously when the agreement expressly allows further bargaining due to uncertainty in how something will be executed – agencies will interpret this as a way out and it will result in them being found unwilling to bargain in good faith.
Finally, the order requires that agencies submit any collective bargaining agreements with their expiration date to OPM for public accessibility, which is probably a good thing especially to combat false statements about what is in these agreements.
Overall, beyond the new workgroup, the order closely conforms with how agencies already operate despite the attempt to have the most stringent approach to bargaining – agencies already flout the law regularly regarding bargaining rules. I demanded bargaining on a change in leave allotments around Christmas one year and the office managers decided they absolutely would not bargain and so just wouldn’t change anything at all – they tried to stress to employees that the Union is why they won’t be able to take off – and then everyone was able to be off anyway. Meanwhile, only a few months later, a new acting District Manager came in and straight up told me that the policy was changed several times since – they were required to notify me even if I didn’t have an open request to bargain and still didn’t notify me as legally required.
Executive Order 13837: Ensuring Transparency, Accountability, and Efficiency in Taxpayer Funded Union Time Use
This executive order is substantially more objectionable than the previous one. It is intended specifically for the purpose of unionbusting. It effectively only orders management at agencies to take certain stances and it by no means requires that the result of bargaining conform with these draconian rules. It revolves around the emotionally charged term “taxpayer-funded union time,” which we already discussed as well as that management uses plenty of taxpayer-funded time to fight the union but does not officially record the time it uses. For the most part, they are using the same amount of time as the Union on any particular action – one manager dealing with one union representative. However, due to the fact that there are several management officials dedicated to fighting the union full time, the fact that management outnumbers union representatives by a good margin, and that management generally takes several days of training more than once a year on how to fight the union while union officials generally take one day a year on training – at least in my agency. Management habitually takes much more taxpayer funded time than the Union will.
It also creates the very odd term of “union time rate.” This term has certainly created confusion for many union officials at my agency – the way the term is used, if you don’t take note of how it is defined, seems to suggest a union official may only use one hour of official time at once – which is not at all what it means. Rather, this refers to how many hours per employee per year the union is granted total.
The first actionable declaration of the order states that management will not consider more than a bargaining rate in excess of 1 hour to be reasonable, necessary, and in the public interest normally. Out of the 2,080 hours that a federal employee works, Trump is declaring that it is not reasonable to use more than one of those hours toward union representation, about .05% of total time.
For comparison, the current SSA/AFGE contract grants a total of 250,000 hours to be used for official time across the union (Article 30, Section 5.B) – In 2012, the agency was using the 2011 figures for the number of employees: 65,600. Of course, this includes management officials as well and so it’s going to be closer to 50,000 employees. That is a rate of 5 hours per bargaining unit employee per year. But then the Union doesn’t use all of its hours or even close to all of its hours, and that’s still only about a quarter of a percent of all time total it could use, hardly a hardship on the American taxpayer, especially given that this is essentially time spent on integrity issues. Internal union business such as elections and soliciting membership are legally prohibited from being done on the clock – these are purely representational issues to keep wrongful actions from being taken.
Furthermore, much of this effort coincides with direct public interest. For mple, there is a public uproar about the Social Security Administration closing offices requiring people to travel further for vital support. The management, as well as President Trump, asked for a significant cut in SSA’s budget and Congress saw this and said no. Instead, SSA received a significant increase in the budget instead with the mandate to keep offices open. Lo and behold, they continued to close offices. AFGE had been fighting this and made an agreement to be consulted prior to office closures – the agency refuses to actually comply with that agreement (as is customary with agreements) and announces the closures before we find out about them. The constant claim is that no office space could be found – which is utter bullshit. Arlington, Virginia’s mayor tried to find alternate office space for the agency and SSA refused to work with him. My own office has run out its lease and we keep going month by month – this is not the decision of the landlord but rather of SSA who wishes to keep the option of closing the office on the table. I know this because I am unable to get management to have the landlord fix many things because the lease is expired.
Here, the union is using official time to lobby for the public, as we often do trying to make sure that there is proper seating and temperature control for the public to no avail. Management refuses to bargain (claiming absolutely everything is de minimus – of minimal impact and thus not bargainable) and brushes off grievances.
A proper bargaining rate is vital for the integrity of the civil service. The hours used are not fully up to the union representatives, but up to the conditions which arise around them. For example, if an employee is about to be subject to and adverse action and wants union representation, the union is legally required to represent them. Situations may arise where you have to represent one employee in demanding that management take an action to stop poor behavior by a second employee and then still have to represent the second to ensure that they are treated fairly in being reprimanded or terminated, regardless of whether or not you want them reprimanded or terminated. I am authorized to use 25% of my time, or 520 hours a year, but I have never used more than about 30 because circumstances haven’t required me to use those hours.
If I were instead limited to using 30 hours, this opens up great opportunity for abuse – management can easily create the conditions where I need to use up those 30 hours and then I would have to take time off to do any other representation. Having an excess available protects against management forcing them to be used up and then simply doing whatever they please without consequence, including removing people improperly.
Back to the text of the order, it then requires that “[i]f an agency agrees to authorize amounts of taxpayer-funded union time […] [in excess of] 1 hour, the agency” shall report to OPM why this is reasonable, necessary, and in the public interest. This is the exact terminology that confused so many about the meaning of the term “union time rate.” The negotiators for management must also notify the agency head at least 5 business days in advance if they plan to propose or accept a higher rate of union time – again an a priori failure to bargain in good faith as it creates an undo delay which the previous order expressly said is a failure to bargain in good faith.
The order next that employees may not engage in lobbying activities during paid time, unless it is in their official capacities as an employee, which is curious. Employees generally do not lobby in any sense – though agency heads may ask Congress for changes to do their jobs or the manager’s association may do the same, and the Union president may on occasion make Congress aware of what is happening in the agency. It is already illegal to lobby for legal changes under 18 US Code 1913, but perhaps this is trying to consider the parts the law expressly does not forbid from being done. Essentially, this is trying to prevent the last, keep Congress from being informed about things that the Union may find important, such as SSA closing offices as described above, or when years ago SSA’s union ratted out management for spending lavish amounts on a management retreat with exhorbant entertainment and catering expenses in a luxury hotel, travel and board paid, while employees couldn’t get travel expenses reimbursed for training. It was over a decade ago, so I am having trouble finding the story, but there was a similar event with the General Services Administration in 2012. Management tries to make sure management is happy.
Next is a provision requiring that union officials not use more than 25% union time. By comparison, the SSA/AFGE contract allows for 12 officials to use 100% time – I believe only two actually do – 15 may use about 70%, 135 may use 50%, and the rest may only use 25%, of course it is all subject to the overall allotment of hours which is, once again, a bit less than a quarter of a percent of the total man hours. The officers that use more than 25% do so for a good reason – they have to handle issues over larger areas than I do. I handle the issues in one office; if I need guidance I turn to my local president who uses up to 50% and helps handle an entire area encompassing Southeast Michigan and parts of North Ohio, around 30 offices, and handles issues involving the entire area. He, of course, has to find out from us what is happening locally to build a picture of what is going on across the area. Regional level representatives would likewise be gathering information at a regional level consisting of several states, there are 6 in the nation. Then we have the national level where our council president is gathering information for the entire nation, as well as counseling on a nationwide scale. The officers higher up need to have more knowledge and do more research into precedents and laws, organize arbitration hearings, et cetera. Limiting their time to 25% means reducing the efficiency of the Union in doing its job, requiring more people research the same thing and impeding knowledge of what is happening on larger levels.
After that, Trump limits the use of government property (such as unused agency space, internet, email, phones, that have no actual cost to the agency beyond what they are already paying anyway and charge the union the full price of that equipment. Worked into the costs would be such things as extra security costs that the agency determines themselves if they aren’t generally available to employees off the clock. He then goes on to list several things including things that are generally available because they are of no cost to the government (for example, employees may use the internet while on lunch or break and make phone calls, and they can park in the parking lot which he does not want union officials to be allowed to do – going on official time, then move your car. In fact, while these things cost the agencies nothing, enforcing these prohibitions would cost money, lowering government efficiency.
Why? Well, by taking these things away the Union will not be able to communicate and operate efficiently – which is why time and again arbitration and impasse panels have approved these uses.
However, this does not apply to employees using official time for purposes that you cannot use official time for the purpose thereof. He mentions an employee using official time to confer with their union representative – for which the employee may not use official time (they are legally permitted duty time) and but the union representative needs. It is unclear if this is an complete misunderstanding by the president or an intentional statement intended to trip people up. He states that employees (including representatives who can actually use the time) cannot use official time to prepare or pursue arbitration or grievances as required under 5 US Code 7121, except where authorized by law, which that very section authorizes in full by insisting that any negotiated procedure “assure an exclusive representative the right, in its own behalf or on behalf of any employee in the unit represented by the exclusive representative, to present and process grievances.” The uselessness of the words is sure to cause agencies to illegally prevent proper usage of official time.
His next declaration is that representatives cannot use official time unless they get advance written authorization unless that is impracticable – which is already the law though it will likely be read in such ways as to cause inefficiency such as a meeting suddenly changing tone from informal to formal – a formal meeting is any meeting between any number of managers and any number of employees regarding conditions of employment – due to a manager not properly notifying the Union.
However, it also plays into the next declaration that a representative who uses the time without proper permission will be considered absent without leave (AWOL) and this may lead to disciplinary action… such as removal. Realistically, this would come from a disagreement between a union representative and a manager of what constitutes a formal meeting. The manager would say it isn’t a formal meeting and the union representative would persist that it is formal. Quite frankly, this would be a common occurrence as managers often turn things into formal meetings but will ultimately relent in letting the union representative do their duties without preparation. Trump wants it to be that an obstinate manager can keep saying it isn’t a formal meeting, charge the representative with AWOL for not simply relenting, and then fire them for leave issues before an Unfair Labor Practice could be resolved. The intent is to weaken the Union by preventing it from being able to address issues timely.
Here is a related story: back in the last days of the Bush Administration the Social Security Administration decided to use a new system for handling internal promotions. The Union requested to bargain and were told it was de minimus and could not be bargained. As such, they filed an Unfair Labor Practice and after many months won and the agency was told they had to bargain. The agency posted a notice that they were supposed to have bargained but said it was now too late so they still would not bargain even after being ordered to do so.
Trump insists that the use of official time should be fully monitored and micromanaged by agencies, which of course adds even more cost to the agency. This gives the ability for managers who are facing a grievance, or arbitration thereafter, to simply shortchange the time needed to prepare to prevent effective representation – forcing the Union to fail to meet its legal obligations to properly represent employees. Imagine if accused criminals could have full say over how much time police or a prosecutor had to prepare the case against them – that is the power Trump wants to give federal managers. Employees already have to request time and give an idea of what they are doing, but Trump wants to require each individual task to be enumerated.
Next up is a mandate for agencies to both develop and implement a system for monitoring the use of official time, which clearly will lead to failures to bargain on implementation of that system in violation of federal law.
Afterwards, he requires all agencies to implement the changes – other than the system monitoring official time use – which are not the management stances but rather the start of reporting requirements they are not yet required to have the system to gather the information upon and start notifying him of when they will not hold his ridiculous terms up in bargaining and to start creating the unnecessary delays in accepting bargaining terms. However, agencies are mistaking this part as requiring that the unnegotiated terms are implemented illegally.
Executive Order 13839: Promoting Accountability and Streamlining Removal Procedures Consistent with the Merit System Principles
This executive order is not just the last of the three sequentially, but it is where the three culminate in their ultimate meeting. The first established a taskforce to negotiate unions into a hole; the second weakens the ability for unions to operate to defend employees; this third order opens the way to arbitrary dismissals that fundamentally threatens the civil service.
He begins by stressing that due process rules – which are not only negotiated but constitutionally mandated by the requirement to due process before the government can strip you of anything, such as employment – should be weakened for arbitrarily defined poor performers, requesting shorter periods to show improvement. Trump also wants to do away with progressive discipline, such as first reprimanding an employee, giving suspensions, then removing them from service. Of course, when cases actually go before merit boards, they tend to already find that agencies are taking too strong of punishments as is and reverse termination decisions to suspensions. However, more importantly, this means that he wants employees to be able to be removed on a first offense – you’re delayed in being able to get to work and are unable to call in timely or act in a way a supervisor arbitrarily finds insubordinate – say refusing to strip the tax exempt status from a right wing organization because you don’t think it is merited – they can fire you immediately.
We then get to a part that literally promotes arbitrary actions:
Conduct that justifies discipline of of one employee at one time does not necessarily justify similar discipline of a different employee at a different time […] and agencies are not prohibited from removing an employee simply because they did not remove a different employee for comparable conduct.
The similarity of discipline is key test to ensure decisions are made for the stated reasons. If one employee is black and another is white and the black employee is fired for something the white employee only gets a slap on the wrist for, both first time offenders, you know that they weren’t fired for the offense, but because they were black. Similarly, if a devout Christian employee and an atheist employee both do the same and only the devout Christian is fired while the atheist gets a slap on the wrist, you know the Christian was fired for their beliefs. Trump wants to say that’s okay despite the Civil Rights Act prohibiting both arbitrary actions. One employee disregards an unconstitutional or otherwise illegal order which was upheld to be the appropriate action while another followed that order – the guy who refused to take your guns is fired and the one who did keeps his job. Remember, this rule would remain in effect after Trump leaves office, meaning a Democrat or a third party candidate may inherit the same power.
Several points stress agencies should give no leeway in timeframes and quickly remove employees.
He calls for arbitrarily deciding who should be removed in a layoff by who the supervisor finds higher performing rather than seniority. The problem here is that supervisors are extremely arbitrary. I spent my first couple years at my current office as a trainee and after being removed I began being rated on a scale of 1 (unsuccessful), 3 (successful), or 5 (highly successful). My first year I received all 3’s, which is what is expected – even though I’m pretty sure my supervisor at the time hated me. The next I earned myself a 5 for excelling, and two the next year. That supervisor retired and the District Manager rated me for the next year, giving me three fives. I worked harder than I had before and did more above and beyond than I ever had – the new supervisor gave me all 3’s – their definition of what exceeded expectations was wildly different than the other two. The decision was arbitrary. In the best case scenario, this is what happens, an arbitrary decision of someone chosen to make it.
Alternatively, an agency can overhire one year and then lay people off the next – in each case removing people arbitrarily deciding that they were less valuable despite the fact that the decision was really their legally protected status, that the supervisor just doesn’t like them personally, or perhaps they are resisting illegal or immoral actions that would otherwise be protected.
Next is exactly where the Union is not just a workers’ right issue, but an integrity issue. Trump orders agency heads to try to exclude that grievability regarding a termination of an employee for misconduct or unacceptable performance – despite 5 US Code 7121 requiring that such actions to be included in grievance procedures and able to be arbitrated.
(2) (A) The provisions of a negotiated grievance procedure providing for binding arbitration in accordance with paragraph (1)(C)(iii) shall, if or to the extent that an alleged prohibited personnel practice is involved, allow the arbitrator to order—
(ii) the taking, by an agency, of any disciplinary action identified under section 1215(a)(3) that is otherwise within the authority of such agency to take”
5 US Code 7121
(A) A final order of the Board may impose—
disciplinary action consisting of removal, reduction in grade, debarment from Federal employment for a period not to exceed 5 years, suspension, or reprimand;
an assessment of a civil penalty not to exceed $1,000; or
any combination of disciplinary actions described under clause (i) and an assessment described under clause (ii)
In short, this order for what management should negotiate is outright illegal.
He then says no agency shall subject the assignment of ratings or the award of incentive pay to grievances or binding arbitration, make any agreement including the collective bargaining agreement that follows the law in limiting the agency’s ability to fire people or requires the use of a period for employees to improve as legally required by 5 US Code 43 which he cites, requires progressive discipline, or afford an employee more than the 30 day period that he just said they shall not allow. Note, it does not only require the law doesn’t only mandate that they give the 30 day period for improvement, but that same law requires that agencies encourage employee participation in the development of performance assessments. He directly tells agencies that they shall not agree to do something required by law and then cites the law he is telling them to violate.
Let me spell that out: the law requires that agencies encourage employee input in developing performance standards (4302) and requires a 30 day improvement period (4303). Trump orders agencies to not do these exact things, then cites the law that shows the order is illegal.
Next in line is a statement that agencies shall not agree to erase, remove, or alter information about an employee’s performance or conduct in their official personnel records. Of course, the result of legally mandated grievances, arbitration, or merit board decisions may require the alteration of these files. Note that same 5 US Code 4303(d) states explicitly:If, because of performance improvement by the employee during the notice period, the employee is not reduced in grade or removed, and the employee’s performance continues to be acceptable for 1 year from the date of the advance written notice provided under subsection (b)(1)(A) of this section, any entry or other notation of the unacceptable performance for which the action was proposed under this section shall be removed from any agency record relating to the employee.
It also states that agencies shall not withhold the information from another agency – which, unless the employee gives their permission – which cannot be coerced – or it is a matter of criminal prosecution, violates the Privacy Act of 1974.
He then requires agencies to report to OPM various statistics on adverse actions, including actions he prohibits.
Then, based on these orders, he does something that management is ecstatic about even though they should be very afraid. He orders that within 45 days that agencies revise their personnel policies to conform to these actions. As a union representative I know that the personnel policies of an agency are superseded by collective bargaining agreements: agencies may alter their personnel policies at will, but they must bargain the collective bargaining agreement. I cannot link you to Social Security’s personnel policy manual since it is not public and not subject to the Freedom of Information Act, but I can tell you that it does explicitly state as much. Bargaining unit employees are not subject to these changes, but managers will be unless overturned by merit boards. Smile, you’re first in the crosshairs, management.
He also orders agencies to renegotiate any collective bargaining agreement that is inconsistent with these orders – which will likely fail to result in any favorable changes and certain to still not conform. I must admit I’m unsure if they are even legally allowed to renegotiate it before the term is up without agreement from the unions.
Finally, he orders that OPM provide training to federal supervisors on holding employees to these rules that will never apply to bargaining unit employees within a “reasonable period.”
The order presumes that these issues can be successfully negotiated in a collective bargaining agreement when they absolutely cannot. In the end, it puts into effect orders that puts management officials in danger of being arbitrarily fired and ensures bad faith negotiations with union employees. However, even with management being subject to these draconian rules – even though you want to see them eat their just desserts – puts the civil service in danger. We have laws and rules in place to ensure the neutrality of federal employees and a central part of that is protecting them from arbitrary actions. There is nothing in human nature or the history of hierarchies that suggests that removing these protections does anything but allow for the abuse of power. With protection from arbitrary actions, employees – including managers – are able to stand up against unlawful orders and prevent the politicizations of agencies. Without those same protections, employees become vulnerable – and vulnerable employees are malleable and open to corruption.
How These Orders are Being Applied
We just discussed what these executive orders actually mean – what they actually order despite being written in an extremely unclear fashion. However, that is not their actual effect. Agencies are misinterpreting them as are unions – my union, the American Federation of Government Employees, warned me that these orders override collective bargaining agreements – even though the president doesn’t have legal authority to do that and the orders expressly state, each individual one, that they do not override the agreements.
It’s no wonder my union is worried, because the Agency gave formal notice which suggests that they intend to unilaterally alter the agreement by July 9 – note they are not extending the legally mandated notice to bargain but will simply inform us what terms they will illegally impose on us. The notice cites the December 2017 termination notice stating the agency wanted to negotiate the entire contract from scratch. A union official reported that they were told by their managers that their appropriately bargained office space (a mere cubical and file drawers) were to be surrendered on July 9 unless the union gave an undetermined fair market value price. The official did not get back to me on whether or not I had permission to name them. There is no reason to suppose other agencies are not taking similar actions.
While the executive orders do not have the authority to override legislation, federal agencies intend to violate the law anyway. It will be a likely be a long while before the Federal Labor Relations Board can take action due to the fact that they will be inundated with unfair labor practice complaints and won’t have the manpower to get through them in a reasonable amount of time.
It may be found that Trump is not legally responsible for this mess because his executive orders expressly forbade these actions, but they fanned the flames that are resulting in these illegal actions and a formal clarification forbidding these actions is necessary. The future of a neutral, efficient civil service is hanging in the balance.
As a result, the AFGE (American Federation of Government Employees) and NTEU ( National Treasury Employee’s Union) filed suit against the Trump Administration requesting a court injunction preventing the execution of these executive orders. The court has not yet made a decision.
What Can Be Done
The most important thing you can do is spread the word and raise hell about what is happening. Share this story, share the AFGE’s press release, discuss the implications of this with friends, family, and coworkers. If you are planning on voting for Donald Trump in 2020, you may have the most influence by telling President Trump that you support him – but not in this – he seems to be easily influenced by his supporters.
As important as labor rights are and how important it is for unions to be able to protect workers from arbitrary actions, this threat is much greater than just the rights of federal workers – this is a threat to the democratic processes of the United States of America. The civil service was a key reform against government corruption and it cannot be allowed to be undone by these executive orders. Stand up now.
This article discusses a current event happening now and should not be construed in any way as a call to vote for, or against, any particular candidate, party, or partisan group.
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