As I recently informed you, on May 25, 2018, the President issued three Executive Orders aimed at rolling back the rights of federal employees and their unions. On Friday, June 1, 2018, NTEU filed a lawsuit in the U.S. District Court for the Eastern District of Virginia to challenge provisions contained in two of those Orders. NTEU believes that the President exceeded his authority when he issued Orders that conflict with provisions of the Civil Service Reform Act (CSRA).
The portion of the Order purporting to limit official time for union representatives to no more than 25% of their paid time conflicts with Chapter 71 of the CSRA. The same is true for the portion of the Order aimed at denying official time for union representatives to prepare or pursue grievances. The CSRA contains no such limitations, but instead allows for the negotiation of reasonable amounts of official time.
NTEU has, consistent with Chapter 71, negotiated reasonable official time provisions in our collective bargaining agreements. This Order, if enforced, would require agencies to renegotiate those provisions.
The same Order would prohibit the use of official time for lobbying. This part of the Order is also contrary to Chapter 71, which permits unions to bargain for official time to direct their concerns to Congress. If implemented, agencies would be required to try to eliminate, through negotiations, contract provisions that allow official time for employees to present their views to Congress.
A section of another Executive Order conflicts with the unacceptable performance procedures mandated by Chapter 43 of the CSRA. Chapter 43 requires that, before being subjected to an unacceptable performance action, employees be given an opportunity to improve their performance, commonly known as a performance improvement period, or “PIP.” The Order would generally set PIP lengths at 30 days, reserving the right to modify that period to the “sole and exclusive discretion” of agencies. This approach is contrary to Chapter 43, which applies to require reasonable PIPs. It also undermines Chapter 71’s collective bargaining regime, under which NTEU has frequently negotiated for PIPs greater than 30 days.
NTEU has asked the court to declare these portions of the Orders unlawful and to enjoin the President and his subordinates, including the Director of the Office of Personnel Management, from enforcing them.
I will keep you informed of further developments in this case as they occur.