Federal Judge Rules in Favor of Labor Unions on Official Time, OPM Issues Guidance

On Friday, D.C. District Court Judge Ketanji Brown Jackson released a decision in the case brought by more than a dozen federal labor unions challenging the Trump administration’s executive orders seeking to limit federal employees’ use of official time – that is, time during which they are ‘on the clock’ in their federal position—to work on union-related business. Among the changes sought by the administration was a cap that would limit the maximum amount of official time to no more than 25 percent of a given employee’s work schedule.

Labor unions bristled at the executive orders, viewing them as an existential threat and filing numerous lawsuits that were ultimately rolled into one. In the decision issued by Judge Jackson, which notably “did not declare the executive orders themselves as violations of the law,” according to Nicole Ogrysko at Federal News Radio, nine components of the executive orders were invalidated.

The nine invalidated measures, according to Ogrysko:

  • The imposition of a 25 percent cap on the use of official time,
  • The prohibition against employees’ right to petition and communicate with Congress,
  • The ban on the use of official time by union representatives to prepare and present grievances,
  • The one-hour per bargaining unit employee formula to be applied to set an aggregate cap on the use of official time,
  • The limitations placed on unions’ use of agency facilities, such as office space and computers,
  • The exclusion of challenges to performance ratings and incentive pay from the scope of the negotiated grievance procedure,
  • The limitation of performance improvement periods (PIPs) to 30 days, with agencies alone having the discretion to apply longer periods,
  • The direction to agencies to press for the exclusion of removals from the scope of the negotiated grievance procedure, and,
  • The prohibition against bargaining over the “permissive” subjects.

“There is no dispute that the principle mission of the FSLMRS [Federal Service Labor-Management Relations Statute]  is to protect the collective bargaining rights of federal workers, based on Congress’s clear and unequivocal finding that ‘labor organizations and collective bargaining in the civil service are in the public interest,’” Judge Jackson, who was reportedly on the short-list of five final candidates considered for the Supreme Court by the Obama Administration, said in her ruling. “This court has concluded that many of the challenged provisions of the orders at issue here effectively reduce the scope of the right to bargain collectively as Congress has crafted it or impair the ability of agency officials to bargain in good faith as Congress has directed, and therefore cannot be sustained.”

Yesterday, the U.S. Office of Personnel Management (OPM) issued guidance to agency heads regarding the ruling.

“OPM will fully comply with Judge Jackson’s order and encourages other agencies to consult with their offices of human resources and general counsel to determine proper compliance measures based on the order,” wrote OPM Director Jeff Pon. “OPM will work with the U.S. Department of Justice to evaluate next steps in this litigation and will provide additional guidance to agencies as appropriate.”

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