Eject the Executive Orders, Don’t Evict the Unions

On May 25, 2018, President Trump issued three Executive Orders (EOs) all with similar preambles claiming to ensure the effective functioning of the executive branch. Unfortunately, confusion now rules the day, and much of what is required or suggested in the EOs appear to simply punish federal employees. As Joe Davidson at the Washington Post explains, “[i]f Trump is successful . . . he would upset long-standing labor-management relationships that largely have existed in an atmosphere of cooperation rather than the confrontation he favors.” Unfortunately, one of the President’s EOs goes so far as to literally remove the union from the workplace. That is not what Congress had in mind when it established the nation’s current civil service system.

In 1979, when Congress enacted the Federal Service Labor-Management Relations Statute, it found that the “statutory protection of the right of employees to organize, bargain collectively, and participate through labor organizations” was in the government’s interest, and it described numerous reasons to support such findings:

    • It safeguards the public interest,


    • contributes to the effective conduct of public business, and


  • facilitates and encourages the amicable settlements for disputes between employees and their employers involving conditions of employment.

Congress concluded that “labor organizations and collective bargaining in the civil service are in the public interest.” 

It’s not surprising that over the years, as union representatives have worked with their management counterparts, managers found it more efficient for the union representatives (typically these are agency employees fulfilling dual roles) to have an office nearby and to allow them to use agency resources. Those arrangements were often incorporated into the parties’ collective bargaining agreements. Here is an example (found in footnote two of the linked decision) of an agreement recognizing the worth of providing the union with office space and resources:

Article 48, Section 1 – Local Union Office Space

A. Management recognizes the importance and value of the Union’s mission and purpose. Accordingly, Management agrees to furnish office space to the Union appropriate for carrying out its representational and partnership duties in locations easily accessible to employees and private citizens and of size, furnishings, and decor commensurate with other administrative offices within the facility.

B. Each office will be equipped with adequate telephone lines, fax and computer capabilities.

C. In addition, the Department will provide District and National representatives with office space or suitable arrangements to carry out their representational responsibilities under this Agreement.

Despite the importance of and value in providing a union space and resources to fulfill its mission, the President’s new EO on official time requires agencies to completely discontinue the employees’ ability to conduct certain union matters in ways previously found acceptable:

No employee, when acting on behalf of a Federal labor organization, may be permitted the free or discounted use of government property or any other agency resources if such free or discounted use is not generally available for non-agency business by employees when acting on behalf of non-Federal organizations. Such property and resources include office or meeting space, reserved parking spaces, phones, computers, and computer systems.

EO 13837, Section 4(a)(iii).

But, at Section 8(a), the EO also goes on to say that agencies should implement the order “to the extent permitted by law and consistent with their obligations under the collective bargaining agreement.” (Emphasis added.) Notwithstanding this exception, at least three federal agencies are now using the EO to justify upending their contracts with their respective unions or to otherwise ignore their bargaining obligations.

As the Washington Post article cited above further details, the Department of Housing and Urban Development (HUD) sent a letter dated June 14, 2018 to the employees’ union, the American Federation of Government Employees (AFGE), stating that “the union shall have until July 15, 2018 to vacate all offices they currently occupy, return all government property they currently possess and cease using government resources.” The Social Security Administration (SSA) apparently sent a similar notice to AFGE. And the Department of Health and Human Services (HHS) sent a letter to the National Treasury Employees Union, telling the union that it would have to begin paying rent for its office space. But in each situation, it appears that the parties have collective bargaining agreements in place that cover these matters, i.e., contractual terms providing space and resources to the union. Notably, the contracts’ expiration dates extend well beyond the agencies’ proposed timelines for implementation. On the surface, the agencies seem intent on violating their contracts.

Even if the parties’ agreements allowed for limited mid-term contract bargaining or opening the contracts, the law requires that they engage in good-faith negotiations. The Federal Labor Relations Authority, the independent agency tasked with settling labor disputes in the federal sector, has found that “it is well established that the use of office space by a union functioning as the exclusive representative of bargaining unit employees is a matter affecting conditions of employment.” Along those lines, the Authority has also found that union office space is a substantively negotiable condition of employment. As a result, an agency wishing to change such an established condition of work must give the union an opportunity to bargain. This means that the agencies here are prohibited from declaring unilaterally that the unions are simply evicted from their space or that they no longer have access to certain resources unless they pay for them. HUD’s July 15, 2018 deadline for the union to vacate certainly does not indicate a willingness to bargain. Even if the contracts allow the agencies to reopen certain provisions of their contracts – which again does not appear to be the case at HUD, SSA, or HHS – they would still have to sit down at the bargaining table and negotiate any changes with the union. Section 8 of the EO appears to recognize this, but obviously there is confusion over how to properly apply the president’s recent pronouncements.

While not a certainty, one type of remedy for failing to engage in good faith bargaining over such conditions of work includes providing a union with status quo ante relief. While the agencies’ rush to remove the unions and change the employees’ ability to access certain resources, they might very well be required to later return these resources. It seems more efficient to follow the law and adhere to the contract or otherwise engage in good faith bargaining with the union.

While it remains to be seen whether the president’s EOs will survive judicial scrutiny – multiple unions have filed lawsuits claiming the EOs are illegal – agencies should continue to work with the employees and their representatives. Agencies should not be allowed to disregard contractual agreements and statutory bargaining obligations; the president’s orders do not supersede existing statutory law. And disrupting years of agreed upon workplace relations by unnecessarily punishing employees does not ensure the efficient and effective functioning of the executive branch. Indeed, the new orders and how some of them are being applied conflict with Congress’s finding that unions and collective bargaining are in the public interest.

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