83 FR 25335 - Ensuring Transparency, Accountability, and Efficiency in Taxpayer-Funded Union Time Use
Executive Office of the President
Federal Register Volume 83, Issue 106 (June 1, 2018)
Page Range
25335-25340
FR Document
2018-11916
Federal Register, Volume 83 Issue 106 (Friday, June 1, 2018)
[Federal Register Volume 83, Number 106 (Friday, June 1, 2018)]
[Presidential Documents]
[Pages 25335-25340]
From the Federal Register Online [www.thefederalregister.org]
[FR Doc No: 2018-11916]
Presidential Documents
Federal Register / Vol. 83 , No. 106 / Friday, June 1, 2018 /
Presidential Documents
[[Page 25335]]
Executive Order 13837 of May 25, 2018
Ensuring Transparency, Accountability, and
Efficiency in Taxpayer-Funded Union Time Use
By the authority vested in me as President by the
Constitution and the laws of the United States of
America, including section 301 of title 3, United
States Code, and section 7301 of title 5, United States
Code, and to ensure the effective functioning of the
executive branch, it is hereby ordered as follows:
Section 1. Purpose. An effective and efficient
government keeps careful track of how it spends the
taxpayers' money and eliminates unnecessary,
inefficient, or unreasonable expenditures. To advance
this policy, executive branch employees should spend
their duty hours performing the work of the Federal
Government and serving the public.
Federal law allows Federal employees to represent labor
organizations and perform other non-agency business
while being paid by American taxpayers (taxpayer-funded
union time). The Congress, however, has also instructed
the executive branch to interpret the law in a manner
consistent with the requirements of an effective and
efficient government.
To that end, agencies 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.
Sec. 2. Definitions. For purposes of this order, the
following definitions shall apply:
(a) Except for purposes of section 4 of this order,
``agency'' has the meaning given the term in section
7103(a)(3) of title 5, United States Code, but includes
only executive agencies. For purposes of section 4 of
this order, ``agency'' has the meaning given to
``Executive agency'' in section 105 of title 5, United
States Code, but excludes the Government Accountability
Office.
(b) ``Agency business'' shall mean work performed
by Federal employees, including detailees or assignees,
on behalf of an agency, but does not include work
performed on taxpayer-funded union time.
(c) ``Bargaining unit'' shall mean a group of
employees represented by an exclusive representative in
an appropriate unit for collective bargaining under
subchapter II of chapter 71 of title 5, United States
Code.
(d) ``Discounted use of government property'' means
charging less to use government property than the value
of the use of such property, as determined by the
General Services Administration, where applicable, or
otherwise by the generally prevailing commercial cost
of using such property.
(e) ``Employee'' has the meaning given the term in
section 7103(a)(2) of title 5, United States Code,
except for purposes of section 4 of this order, in
which case it means an individual employed in an
``Executive
[[Page 25336]]
agency,'' according to the meaning given that term in
section 105 of title 5, United States Code, but
excluding the Government Accountability Office.
(f) ``Grievance'' has the meaning given the term in
section 7103(a)(9) of title 5, United States Code.
(g) ``Labor organization'' has the meaning given
the term in section 7103(a)(4) of title 5, United
States Code.
(h) ``Paid time'' shall mean time for which an
employee is paid by the Federal Government, including
both duty time, in which the employee performs agency
business, and taxpayer-funded union time. It does not
include time spent on paid or unpaid leave, or an
employee's off-duty hours.
(i) ``Taxpayer-funded union time'' shall mean
official time granted to an employee pursuant to
section 7131 of title 5, United States Code.
(j) ``Union time rate'' shall mean the total number
of duty hours in the fiscal year that employees in a
bargaining unit used for taxpayer-funded union time,
divided by the number of employees in such bargaining
unit.
Sec. 3. Standards for Reasonable and Efficient
Taxpayer-Funded Union Time Usage. (a) No agency shall
agree to authorize any amount of taxpayer-funded union
time under section 7131(d) of title 5, United States
Code, unless such time is reasonable, necessary, and in
the public interest. Agreements authorizing taxpayer-
funded union time under section 7131(d) of title 5,
United States Code, that would cause the union time
rate in a bargaining unit to exceed 1 hour should,
taking into account the size of the bargaining unit,
and the amount of taxpayer-funded union time
anticipated to be granted under sections 7131(a) and
7131(c) of title 5, United States Code, ordinarily not
be considered reasonable, necessary, and in the public
interest, or to satisfy the ``effective and efficient''
goal set forth in section 1 of this order and section
7101(b) of title 5, United States Code. Agencies shall
commit the time and resources necessary to strive for a
negotiated union time rate of 1 hour or less, and to
fulfill their obligation to bargain in good faith.
(b) (i) If an agency agrees to authorize amounts of
taxpayer-funded union time under section 7131(d) of
title 5, United States Code, that would cause the union
time rate in a bargaining unit to exceed 1 hour (or
proposes to the Federal Service Impasses Panel or an
arbitrator engaging in interest arbitration an amount
that would cause the union time rate in a bargaining
unit to exceed 1 hour), the agency head shall report
this agreement or proposal to the President through the
Director of the Office of Personnel Management (OPM
Director) within 15 days of such an agreement or
proposal. Such report shall explain why such
expenditures are reasonable, necessary, and in the
public interest, describe the benefit (if any) the
public will receive from the activities conducted by
employees on such taxpayer-funded union time, and
identify the total cost of such time to the agency.
This reporting duty cannot be delegated.
(ii) Each agency head shall require relevant subordinate agency officials
to inform the agency head 5 business days in advance of presenting or
accepting a proposal that would result in a union time rate of greater than
1 hour for any bargaining unit, if the subordinate agency officials
anticipate they will present or agree to such a provision.
(iii) The requirements of this subsection shall not apply to a union time
rate established pursuant to an order of the Federal Service Impasses Panel
or an arbitrator engaging in interest arbitration, provided that the agency
had proposed that the Impasses Panel or arbitrator establish a union time
rate of 1 hour or less.
(c) Nothing in this section shall be construed to
prohibit any agency from authorizing taxpayer-funded
union time as required under sections 7131(a) and
7131(c) of title 5, United States Code, or to direct an
agency to negotiate to include in a collective
bargaining agreement a term that precludes an agency
from granting taxpayer-funded union time pursuant to
those provisions.
[[Page 25337]]
Sec. 4. Employee Conduct with Regard to Agency Time and
Resources. (a) To ensure that Federal resources are
used effectively and efficiently and in a manner
consistent with both the public interest and section 8
of this order, all employees shall adhere to the
following requirements:
(i) Employees may not engage in lobbying activities during paid time,
except in their official capacities as an employee.
(ii) (1) Except as provided in subparagraph (2) of this subsection,
employees shall spend at least three-quarters of their paid time, measured
each fiscal year, performing agency business or attending necessary
training (as required by their agency), in order to ensure that they
develop and maintain the skills necessary to perform their agency duties
efficiently and effectively.
(2) Employees who have spent one-quarter of their paid time in any fiscal
year on non-agency business may continue to use taxpayer-funded union time
in that fiscal year for purposes covered by sections 7131(a) or 7131(c) of
title 5, United States Code.
(3) Any time in excess of one-quarter of an employee's paid time used to
perform non-agency business in a fiscal year shall count toward the
limitation set forth in subparagraph (1) of this subsection in subsequent
fiscal years.
(iii) 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.
(iv) Employees may not be permitted reimbursement for expenses incurred
performing non-agency business, unless required by law or regulation.
(v) (1) Employees may not use taxpayer-funded union time to prepare or
pursue grievances (including arbitration of grievances) brought against an
agency under procedures negotiated pursuant to section 7121 of title 5,
United States Code, except where such use is otherwise authorized by law or
regulation.
(2) The prohibition in subparagraph (1) of this subsection does not apply
to:
(A) an employee using taxpayer-funded union time to prepare for, confer
with an exclusive representative regarding, or present a grievance brought
on the employee's own behalf; or to appear as a witness in any grievance
proceeding; or
(B) an employee using taxpayer-funded union time to challenge an adverse
personnel action taken against the employee in retaliation for engaging in
federally protected whistleblower activity, including for engaging in
activity protected under section 2302(b)(8) of title 5, United States Code,
under section 78u-6(h)(1) of title 15, United States Code, under section
3730(h) of title 31, United States Code, or under any other similar
whistleblower law.
(b) Employees may not use taxpayer-funded union
time without advance written authorization from their
agency, except where obtaining prior approval is deemed
impracticable under regulations or guidance adopted
pursuant to subsection (c) of this section.
(c) (i) The requirements of this section shall
become effective 45 days from the date of this order.
The Office of Personnel Management (OPM) shall be
responsible for administering the requirements of this
section. Within 45 days of the date of this order, the
OPM Director shall examine whether existing regulations
are consistent with the rules set forth in this
section. If the regulations are not, the OPM Director
shall propose for notice and public comment, as soon as
practicable, appropriate regulations to clarify
[[Page 25338]]
and assist agencies in implementing these rules,
consistent with applicable law.
(ii) The head of each agency is responsible for ensuring compliance by
employees within such agency with the requirements of this section, to the
extent consistent with applicable law and existing collective bargaining
agreements. Each agency head shall examine whether existing regulations,
policies, and practices are consistent with the rules set forth in this
section. If they are not, the agency head shall take all appropriate steps
consistent with applicable law to bring them into compliance with this
section as soon as practicable.
(e) Nothing in this order shall be construed to
prohibit agencies from permitting employees to take
unpaid leave to perform representational activities
under chapter 71 of title 5, United States Code,
including for purposes covered by section 7121(b)(1)(C)
of title 5, United States Code.
Sec. 5. Preventing Unlawful or Unauthorized
Expenditures. (a) Any employee who uses taxpayer-funded
union time without advance written agency authorization
required by section 4(b) of this order, or for purposes
not specifically authorized by the agency, shall be
considered absent without leave and subject to
appropriate disciplinary action. Repeated misuse of
taxpayer-funded union time may constitute serious
misconduct that impairs the efficiency of the Federal
service. In such instances, agencies shall take
appropriate disciplinary action to address such
misconduct.
(b) As soon as practicable, but not later than 180
days from the date of this order, to the extent
permitted by law, each agency shall develop and
implement a procedure governing the authorization of
taxpayer-funded union time under section 4(b) of this
order. Such procedure shall, at a minimum, require a
requesting employee to specify the number of taxpayer-
funded union time hours to be used and the specific
purposes for which such time will be used, providing
sufficient detail to identify the tasks the employee
will undertake. That procedure shall also allow the
authorizing official to assess whether it is reasonable
and necessary to grant such amount of time to
accomplish such tasks. For continuing or ongoing
requests, each agency shall require requests for
authorization renewals to be submitted not less than
once per pay period. Each agency shall further require
separate advance authorization for any use of taxpayer-
funded union time in excess of previously authorized
hours or for purposes for which such time was not
previously authorized.
(c) As soon as practicable, but not later than 180
days from the date of this order, each agency shall
develop and implement a system to monitor the use of
taxpayer-funded union time to ensure that it is used
only for authorized purposes, and that it is not used
contrary to law or regulation. In developing these
systems, each agency shall give special attention to
ensuring taxpayer-funded union time is not used for:
(i) internal union business in violation of section 7131(b) of title 5,
United States Code;
(ii) lobbying activities in violation of section 1913 of title 18, United
States Code, or in violation of section 4(a)(i) of this order; or
(iii) political activities in violation of subchapter III of chapter 73 of
title 5, United States Code.
Sec. 6. Agency Reporting Requirements. (a) To the
extent permitted by law, each agency shall submit an
annual report to OPM on the following:
(i) The purposes for which the agency has authorized the use of taxpayer-
funded union time, and the amounts of time used for each such purpose;
(ii) The job title and total compensation of each employee who has used
taxpayer-funded union time in the fiscal year, as well as the total number
of hours each employee spent on these activities and the proportion of each
employee's total paid hours that number represents;
[[Page 25339]]
(iii) If the agency has allowed labor organizations or individuals on
taxpayer-funded union time the free or discounted use of government
property, the total value of such free or discounted use;
(iv) Any expenses the agency paid for activities conducted on taxpayer-
funded union time; and
(v) The amount of any reimbursement paid by the labor organizations for the
use of government property.
(b) Agencies shall notify the OPM Labor Relations
Group established pursuant to the Executive Order
entitled ``Developing Efficient, Effective, and Cost-
Reducing Approaches to Federal Sector Collective
Bargaining'' of May 25, 2018, if a bargaining unit's
union time rate exceeds 1 hour.
(c) If an agency's aggregate union time rate (i.e.,
the average of the union time rates in each agency
bargaining unit, weighted by the number of employees in
each unit) has increased overall from the last fiscal
year, the agency shall explain this increase in the
report required under subsection (a) of this section.
(d) The OPM Director shall set a date by which
agency submissions under this section are due.
Sec. 7. Public Disclosure and Transparency. (a) Within
180 days of the date of this order, the OPM Director
shall publish a standardized form that each agency
shall use in preparing the reports required by section
6 of this order.
(b) OPM shall analyze the agency submissions under
section 6 of this order and produce an annual report
detailing:
(i) for each agency and for agencies in the aggregate, the number of
employees using taxpayer-funded union time, the number of employees using
taxpayer-funded union time separately listed by intervals of the proportion
of paid time spent on such activities, the number of hours spent on
taxpayer-funded union time, the cost of taxpayer-funded union time
(measured by the compensation of the employees involved), the aggregate
union time rate, the number of bargaining unit employees, and the
percentage change in each of these values from the previous fiscal year;
(ii) for each agency and in the aggregate, the value of the free or
discounted use of any government property the agency has provided to labor
organizations, and any expenses, such as travel or per diems, the agency
paid for activities conducted on taxpayer-funded union time, as well as the
amount of any reimbursement paid for such use of government property, and
the percentage change in each of these values from the previous fiscal
year;
(iii) the purposes for which taxpayer-funded union time was granted; and
(iv) the information required by section 6(a)(ii) of this order for
employees using taxpayer-funded union time, sufficiently aggregated that
such disclosure would not unduly risk disclosing information protected by
law, including personally identifiable information.
(c) The OPM Director shall publish the annual
report required by this section by June 30 of each
year. The first report shall cover fiscal year 2019 and
shall be published by June 30, 2020.
(d) The OPM Director shall, after consulting with
the Chief Human Capital Officers designated under
chapter 14 of title 5, United States Code, promulgate
any additional guidance that may be necessary or
appropriate to assist the heads of agencies in
complying with the requirements of this order.
Sec. 8. Implementation and Renegotiation of Collective
Bargaining Agreements. (a) Each agency shall implement
the requirements of this order within 45 days of the
date of this order, except for subsection 4(b) of this
order, which shall be effective for employees at an
agency when such agency implements the procedure
required by section 5(b) of this order, to the
[[Page 25340]]
extent permitted by law and consistent with their
obligations under collective bargaining agreements in
force on the date of this order. The head of each
agency shall designate an official within the agency
tasked with ensuring implementation of this order, and
shall report the identity of such official to OPM
within 30 days of the date of this order.
(b) Each agency shall consult with employee labor
representatives about the implementation of this order.
On the earliest date permitted by law, and to
effectuate the terms of this order, any agency that is
party to a collective bargaining agreement that has at
least one provision that is inconsistent with any part
of this order shall give any contractually required
notice of its intent to alter the terms of such
agreement and either reopen negotiations and negotiate
to obtain provisions consistent with this order, or
subsequently terminate such provision and implement the
requirements of this order, as applicable under law.
Sec. 9. General Provisions. (a) Nothing in this order
shall abrogate any collective bargaining agreement in
effect on the date of this order.
(b) Nothing in this order shall be construed to
interfere with, restrain, or coerce any employee in the
exercise by the employee of any right under chapter 71
of title 5, United States Code, or encourage or
discourage membership in any labor organization by
discrimination in connection with hiring, tenure,
promotion, or other conditions of employment.
(c) Nothing in this order shall be construed to
impair or otherwise affect the authority granted by law
to an executive department or agency, or the head
thereof.
(d) This order shall be implemented consistent with
applicable law and subject to the availability of
appropriations.
(e) This order is not intended to, and does not,
create any right or benefit, substantive or procedural,
enforceable at law or in equity by any party against
the United States, its departments, agencies, or
entities, its officers, employees, or agents, or any
other person.
(f) If any provision of this order, including any
of its applications, is held to be invalid, the
remainder of this order and all of its other
applications shall not be affected thereby.
(Presidential Sig.)
THE WHITE HOUSE,
May 25, 2018.
[FR Doc. 2018-11916
Filed 5-31-18; 8:45 am]
Billing code 3295-F8-P