Presidential Executive Order 13837 (Donald Trump, 2018)
| Executive orders related to the administrative state
President Trump issued this and two other executive orders on May 25, 2018, aimed at improving efficiency and accountability within the federal civil service: Executive Order 13837 • Executive Order 13836 • Executive Order 13839 |
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Executive Order 13837: Ensuring Transparency, Accountability, and Efficiency in Taxpayer Funded Union Time Use was a presidential executive order issued by President Donald Trump (R) in May 2018 that aimed to minimize taxpayer costs associated with federal collective bargaining activities. The executive action sought to "ensure that taxpayer-funded union time is used efficiently and authorized in amounts that are reasonable, necessary, and in the public interest," according to the order.[1][2]
President Joe Biden (D) revoked E.O. 13837 on January 22, 2021, via E.O. 14003.
Background
President Trump issued three executive orders on May 25, 2018, aimed at improving efficiency and accountability within the federal civil service. Executive Order 13837, titled "Ensuring Transparency, Accountability, and Efficiency in Taxpayer Funded Union Time Use," sought to ensure that federal employees used taxpayer-funded union time in an efficient manner and did not misuse federal resources in support of collective bargaining activities. Taxpayer-funded union time allows federal employees to perform collective bargaining activities in lieu of their federal duties during regular work hours.[1][3]
Federal agencies spent roughly $177 million to compensate employees for taxpayer-funded union time in 2016, according to a May 2018 press release from the U.S. Office of Personnel Management (OPM). The OPM also observed that costs associated with taxpayer-funded union time had been continually increasing prior to the issuance of E.O. 13837. Between 2014 and 2016, the OPM reported that taxpayer-funded union time rose from 3,468,170 hours to 3,633,290 hours—an increase of 4.76 percent or 142,942 hours[2][4]
Response
The Government Business Council conducted a flash poll on June 5-6, 2018, which found that "51 percent of federal workers support or strongly support making it easier to remove poorly performing or malfeasant employees. Another 24 percent oppose such efforts, while 24 percent said they were neutral or didn’t know about the changes."[5]
On June 11, 2018, A group of 21 Republican members of the U.S. House of Representatives sent a letter to Trump requesting that he rescind the executive orders. The letter stated, "Federal workers have taken an oath of service to our great nation, and we take very seriously their duty to provide the American public with quality services. That is why we believe that now, more than ever, it is important to uphold and strengthen the working relationships between federal workers and agency leadership."[6]
A group of 23 Democratic House members sent a similar letter to Trump on June 14, 2018. The letter stated, "Your executive orders are the most direct and systematic attack on whistleblower protections in a generation. They strip federal employees of procedures that were put in place to protect them against retaliation by their superiors—who are often political appointees—and they deny whistleblowers assistance from their union representatives when they are punished for speaking the truth."[7]
Lawsuit
- See also: Civil Service Reform Act
Three separate lawsuits aimed at blocking Trump's civil service executive orders were filed by the American Federation of Government Employees, the National Treasury Employees Union, and a coalition of 13 smaller public sector unions. The legal challenges claimed that Trump’s executive orders conflicted with certain collective bargaining provisions of the Civil Service Reform Act and prevented unions from performing their statutorily-required representational duties. Click here for more information.[8]
Provisions
Purpose
E.O. 13837 put forth the following stated purpose:
| " | [A]gencies should ensure that taxpayer-funded union time is used efficiently and authorized in amounts that are reasonable, necessary, and in the public interest. Federal employees should spend the clear majority of their duty hours working for the public. No agency should pay for Federal labor organizations’ expenses, except where required by law. Agencies should eliminate unrestricted grants of taxpayer-funded union time and instead require employees to obtain specific authorization before using such time. Agencies should also monitor use of taxpayer-funded union time, ensure it is used only for authorized purposes, and make information regarding its use readily available to the public.[1][9] | ” |
Taxpayer-funded union time standards
E.O. 13837 required federal agencies to "strive for a negotiated union time rate of 1 hour or less, and to fulfill their obligation to bargain in good faith," according to the order. If an agreement or proposal was reached that exceeded the time rate of one hour or less, the agency head was required to report the negotiation to the OPM director within 15 days and explain why the terms were necessary, describe how the negotiation benefited the public interest, and provide information regarding the total cost of the taxpayer-funded union time to the agency.[1]
Employee conduct
The order put forth the following standards of conduct for agency employees:[1]
- Agency employees could not participate in lobbying activities during paid time outside of their capacity as an agency employee.
- A minimum of three-quarters of an employee's paid time was required to be dedicated to agency business, with certain exceptions.
- Employees exercising taxpayer-funded union time could not use government property, such as office or meeting space, or any other agency resources for free or discounted use unless such use is permitted to employees for non-agency business.
- Reimbursement for expenses incurred by employees for non-agency business was prohibited, unless required by law or regulation.
- Employees could not use taxpayer-funded union time to prepare or pursue grievances against an agency, unless authorized by law or regulation.
- Employees were required to gain advance written authorization from their agency in order to use taxpayer-funded union time, with certain exceptions.[1]
Preventing unlawful or unauthorized expenditures
The order established the following requirements for agencies to prevent unlawful or unauthorized expenditures associated with taxpayer-funded union time:[1]
- Agency employees who use taxpayer-funded union time without advance authorization from the agency were considered absent without leave and subject to disciplinary action. Repeat offenses could be considered serious misconduct and subject to further disciplinary action.
- Each agency was required to develop a procedure to authorize the use of taxpayer-funded union time.
- Each agency was required to develop a system to monitor the use of taxpayer-funded union time.
Reporting
The order required agencies to submit an annual report to the OPM detailing all use of taxpayer-funded union time by agency staff. The OPM was required to analyze the agency reports and publish an aggregate annual report detailing agency-wide use of taxpayer-funded union time by June 30 of each year, beginning in 2020.[1]
Implementation and renegotiation of collective bargaining agreements
E.O. 13837 included the following implementation provisions:[1]
- Agencies were required to implement the order within 45 days.
- Each agency was required to consult with employee labor representatives about the implementation of E.O. 13837. If an agency's collective bargaining agreement was inconsistent with the order, the agency was required to give notice of its intent to alter, renegotiate, or terminate the provisions of the agreement that were inconsistent with the order.
Noteworthy events
Legal challenges to President Trump's civil service executive orders (2018-2019)
- See also: Civil Service Reform Act, E.O. 13836, E.O. 13837, and E.O. 13839
The following timeline identifies key events in a 2018-2019 lawsuit, American Federation of Government Employees, AFL-CIO, et. al. v. Trump, brought by a group of federal employee unions against President Donald Trump's (R) three civil service executive orders issued in May 2018: Executive Order 13837, Executive Order 13836, and Executive Order 13839.
October 2019: Injunction expires, agencies allowed to implement executive orders
The injunction blocking provisions of President Trump's three civil service executive orders expired on October 2, 2019. The United States Court of Appeals for the District of Columbia Circuit on October 3 issued a mandate to implement its July 16 decision vacating the district court ruling and allowing federal agencies to fully implement the orders.[10][11]
September 2019: D.C. Circuit declines rehearing request
The United States Court of Appeals for the District of Columbia Circuit issued an order on September 25, 2019, declining to rehear American Federation of Government Employees, AFL-CIO, et. al. v. Trump before the full court. The order did not provide a reason for the decision.[1]
August 2019: Unions file for rehearing en banc before full D.C. Circuit
Federal employee unions challenging Trump's three civil service executive orders filed a petition on August 30, 2019, requesting a rehearing of American Federation of Government Employees, AFL-CIO, et. al. v. Trump before the full United States Court of Appeals for the District of Columbia Circuit. A three-judge panel of the D.C. Circuit held in July that the court did not have jurisdiction to rule on the case because the Federal Service Labor-Management Relations Statute requires labor practice complaints to be brought before the Federal Labor Relations Authority (FLRA).[12]
August 2019: SEIU files new lawsuit claiming civil service executive orders exceed president's constitutional authority
A chapter of the Service Employees International Union (SEIU) representing U.S. Department of Veterans Affairs employees in Buffalo, New York, filed a lawsuit in the United States District Court for the Western District of New York on August 13, 2019, arguing that President Trump's three civil service executive orders exceeded the president's constitutional authority and violated the Civil Service Reform Act. The union claimed that the district court had jurisdiction over the case in part because the FLRA had lacked a general counsel for almost two years—preventing the agency from hearing unfair labor practice complaints.[13]
Because the United States Court of Appeals for the 2nd Circuit has appellate jurisdiction over the United States District Court for the Western District of New York, the D.C. Circuit's July 2019 decision upholding the civil service executive orders was not controlling on the case.[13]
July 2019: D.C. Circuit panel reverses district court ruling, holds district court lacked jurisdiction to issue injunction
A three-judge panel of the United States Court of Appeals for the District of Columbia Circuit on July 16, 2019, reversed and vacated the district court ruling. Judges Thomas Griffith, Srikanth Srinivasan, and Arthur Randolph held that the district court did not have jurisdiction to rule on the merits of the executive orders and that the plaintiffs should have brought the case before the FLRA as required by the Federal Service Labor-Management Relations Statute.[14][15]
Trump administration officials on July 23, 2019, asked the D.C. Circuit to immediately lift the injunction blocking enforcement of the three civil service executive orders rather than wait for the 45-day grace period for rehearing requests to expire. The court denied the administration's request on August 14, 2019.[16][17]
April 2019: D.C. Circuit hears oral arguments in appeal, DOJ claims district court lacked jurisdiction in case
The United States Court of Appeals for the District of Columbia Circuit heard oral arguments in the appeal on April 4, 2019. An attorney for the U.S. Department of Justice (DOJ) argued that the federal courts lacked jurisdiction in the case and that the plaintiffs should have filed an unfair labor practices complaint with the Federal Labor Relations Authority (FLRA) instead. An attorney representing the union groups countered that the FLRA lacked the authority to weigh in on governmentwide rules that are not subject to collective bargaining negotiations.[18][19]
November 2018: OPM instructs agencies to comply with effective executive order provisions
The Office of Personnel Management (OPM) released a memo in November 2018 instructing federal agencies to comply with the provisions of the civil service executive orders that remained in effect, including guidelines related to employee discipline and the use of official union time.[20]
September 2018: DOJ appeals district court ruling
The DOJ appealed the district court's ruling on September 25, 2018. The notice of appeal was filed with the United States Court of Appeals for the District of Columbia Circuit. Oral argument in the case was scheduled for April 4, 2019.[21][22]
August 2018: District court ruling strikes provisions of executive orders, cites conflict with federal statute
Judge Ketanji Brown Jackson of the United States District Court for the District of Columbia struck down several provisions of President Trump's civil service executive orders in a ruling issued on August 25, 2018. The stricken provisions included components of the executive orders that Brown Jackson claimed conflicted with federal statute, such as limitations on the amount of taxpayer-funded time that full-time federal employees can dedicate to union activities, a reduction in the amount of time that poor-performing employees can demonstrate improvement, and certain restrictions on workplace issues that federal agencies can negotiate with unions.[23][24]
A DOJ representative responded to the ruling on August 25, stating that the DOJ was "reviewing the decision and considering our next steps." Then-OPM Director Jeff Pon issued a memo to all federal agencies on August 29 stating that the OPM would comply with Jackson's order and encouraging compliance by other agencies. The OPM also rescinded agency guidance related to the blocked provisions of the executive orders.[23][25]
May 2018: Unions file suit against civil service executive orders, claim orders are unconstitutional and violate federal statute
The American Federation of Government Employees (AFGE) filed a lawsuit challenging the constitutionality of Executive Order 13837 on May 30, 2018. The lawsuit claimed that the order violates freedom of association protections under the First Amendment and alters sections of the Federal Service Labor-Management Relations Statute—Title VII of the Civil Service Reform Act of 1978—without congressional action.[26][27][28]
Brown Jackson consolidated AFGE's lawsuit with two other lawsuits challenging Trump's civil service executive orders (E.O. 13837, E.O. 13836, and E.O. 13839) filed by the National Treasury Employees Union and a coalition of 13 smaller public sector unions. A hearing in the case took place on July 25, 2018.[29]
See also
External links
- Executive Order 13837: Ensuring Transparency, Accountability, and Efficiency in Taxpayer Funded Union Time Use (2018)
- RegInfo.gov
- Regulations.gov
- Search Google News for this topic
Footnotes
- ↑ 1.0 1.1 1.2 1.3 1.4 1.5 1.6 1.7 1.8 1.9 WhiteHouse.gov, "Executive Order Ensuring Transparency, Accountability, and Efficiency in Taxpayer Funded Union Time Use," May 25, 2018 Cite error: Invalid
<ref>tag; name "order" defined multiple times with different content - ↑ 2.0 2.1 Office of Personnel Management, "OPM Director Implementing President’s New Policies to Elevate Federal Government Operations and Protect American Taxpayers," May 25, 2018
- ↑ WhiteHouse.gov, "President Donald J. Trump Is Reforming the Civil Service to Work for the American People," May 25, 2018
- ↑ U.S. Office of Personnel Management, "FY 2016 Official Time Report Highlighting Taxpayer Funded Union Time Released by the U.S. Office of Personnel Management," May 17, 2018
- ↑ Government Executive, "Survey: Half of Feds Support White House Attempts to Ease Firing Process," June 8, 2018
- ↑ Government Executive, "Republican Lawmakers Ask Trump to Repeal Workforce Executive Orders," June 13, 2018
- ↑ Government Executive, "House Democrats Join Fight Against Workforce Executive Orders," June 14, 2018
- ↑ Government Executive, "Federal Judge Consolidates Lawsuits on Workforce Executive Orders, Schedules Hearing," June 19, 2018
- ↑ Note: This text is quoted verbatim from the original source. Any inconsistencies are attributable to the original source.
- ↑ FedSmith, "Executive Orders Allowed to Take Effect After Injunction is Lifted," October 2, 2019
- ↑ United States Court of Appeals for the District of Columbia Circuit, "Mandate," October 3, 2019
- ↑ Government Executive, "Unions Request Rehearing of Trump's Federal Workforce Orders Case," August 30, 2019
- ↑ 13.0 13.1 Government Executive, "Another Union Sues to Block Trump Workforce Orders," August 16, 2019
- ↑ The Washington Post, "In win for Trump administration, appeals court stymies union challenge to civil service restrictions," July 16, 2019
- ↑ United States Court of Appeals for the District of Columbia Circuit, "American Federation of Government Employees, AFL-CIO, et al. v. Trump," July 16, 2019
- ↑ Government Executive, "Trump Administration Asks Court to Allow Agencies to Implement Workforce Orders Immediately," July 24, 2019
- ↑ Government Executive, "Court: Injunction Blocking Workforce Executive Orders Will Remain in Place," August 14, 2019
- ↑ Government Executive, "Judges Fixate on Jurisdictional Question in Appeal of Decision Invalidating Trump Workforce Orders," April 4, 2019
- ↑ Reuters, "D.C. Circuit hears Trump administration's bid to revive civil service executive orders," April 4, 2019
- ↑ FEDweek, "Enforce Parts of Orders Not Blocked, OPM Tells Agencies," November 13, 2018
- ↑ Government Executive, "Trump Administration Appeals Court Ruling On Workforce EOs," September 25, 2018
- ↑ United States Court of Appeals for the District of Columbia Circuit, "Order No. 18-5289," February 19, 2019
- ↑ 23.0 23.1 The Wall Street Journal, "Judge Curbs Trump Orders That Made It Easier to Fire Federal Workers," August 25, 2018
- ↑ Government Executive, "Judge Strikes Down Trump Executive Orders Limiting Federal Employee Union Bargaining," August 25, 2018
- ↑ Office of Personnel Management, "Updated Guidance Relating to Enjoinment of Certain Provisions of Executive Orders 13836, 13837, and 13839," August 29, 2018
- ↑ Government Executive, "Largest Federal Employee Union Sues to Block Official Time Executive Order," May 31, 2018
- ↑ UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA, "AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO vs. DONALD TRUMP," May 30, 2018
- ↑ Common Dreams, "'This Is a Democracy, Not a Dictatorship': Federal Workers Union Sues Donald Trump," May 31, 2018
- ↑ Government Executive, "Federal Judge Consolidates Lawsuits on Workforce Executive Orders, Schedules Hearing," June 19, 2018
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