On May 25th, the President released three Executive Orders impacting federal employees and their unions. POPA has joined with twelve other unions to bring a law suit against President Trump, OPM and the OPM administrator, alleging that the Executive Orders are unlawful (a copy of the filing has been posted here). We have requested that the government be enjoined from enforcing the Orders. A hearing has been set for July 25th and we expect a decision the following day.
In the meantime, we have been waiting to hear from the Office about how they plan to implement these orders with respect to our bargaining unit, and just after July 1st, we received our first communication from the Agency on these orders.
Here is a partial and very condensed description of each Executive Order:
- Executive Order 13839 is aimed at promoting accountability and streamlining removal procedures. Ostensibly in order to promote good morale, grievances over ratings and performance awards will no longer be permitted. To the same end, agencies cannot use progressive discipline (i.e. discipline that progresses to harsher penalties for repetitive conduct matters) or use performance assistance periods or provide employees with other informal periods to demonstrate improved performance prior to a written warning. While the Executive Order calls for only 30 day periods to demonstrate acceptable performance, it leaves it open for the Agency to determine a longer period, in its sole and exclusive discretion. Finally, agencies are no longer to agree to clean an employee’s record or mitigate discipline in order to resolve a complaint or challenge to a removal.
- Executive Order 13837 is aimed at curtailing “official” time use. The Executive Order prohibits unions from lobbying for their organization on official time and from pursuing grievances against the Agency on official time. Every union representative must spend at least ¾ of their paid time each year performing Agency business or training, thereby precluding union officials from carrying out their responsibilities to administer and enforce the collective bargaining agreement. The Executive Order also aims to limit the total amount of time available to a union for representation by deterring agencies from agreeing to more than one hour of union time per bargaining unit member in a fiscal year. Employees working for a labor organization may not use free or discounted government property unless it is also available to other non-Federal organizations. To use union time, union officials and representatives will need advanced written authorization from the Agency.
- Executive Order 13836 is ostensibly aimed at rendering federal sector collective bargaining more effective and efficient. However, the executive order requires agencies to take steps to limit the duration of bargaining and to narrow proposals that can be bargained. Agencies are required to request exchange of written proposals during negotiations thereby prohibiting the parties from mutually developing contract language to resolve workplace issues.
Here is how the Executive Orders may impact you:
- Executive Order 13839 is related to streamlining removal procedures. The Agency has not told us what steps it will take to implement this Order. The likely impact is that there will be more limited opportunities to improve, fewer opportunities to appeal performance actions and more performance removals. In the recent past, our Agency has offered to mitigate penalties or provide clean records. These opportunities may no longer be available under the Executive Order.
- Our union has a number of union officials and representatives who spend more than ¼ of their time working on representational duties. There is no doubt that if and when Executive Order 13837 is implemented, POPA will no longer be able to provide the same level of service to you that it has in the past. We will be prohibited from using official time to prepare and file grievances on your behalf. Those of us who have already exceeded 25% official time for the year or the measured relevant period may only be permitted to use official time for renegotiating terms of our existing agreements which conflict with the Executive Orders. In the recent past, POPA has spent much of its time working with management on tools development, training and new programs. Because of this, there have been few surprise implementations for our bargaining unit; we have had the opportunity to discuss almost all changes in working conditions with management prior to implementation. By using this technique, implementation of changes in working conditions have rarely been delayed, if at all, and most concerns of the bargaining unit have been considered and dealt with upfront. Unfortunately, due to the Executive Orders, the Agency and POPA may have to make changes in how we work together.
The Agency is required to stop adhering to any agreement terms that conflict with government-wide law, rule or regulation. Once the Agency makes determinations about what terms conflict, it will unilaterally alter our agreements. POPA will be given an opportunity to negotiate over the impact of those changes after the fact. Many of the resources that will remain available to us will be spent, in the short term, on these negotiations.
POPA will continue to do its best to represent you in this new legal landscape. Right now, we do not know how quickly things will be changing or even what will be changing for you or for us. Many of us at the USPTO have come to appreciate the employee friendly atmosphere that has existed in the USPTO for a number of years. We hope that can be maintained under the new Executive Orders.