Ensuring Transparency, Accountability, and Efficiency in Taxpayer-Funded Union Time Use, 25335-25340 [2018-11916]

Agencies

• Executive Office of the President

[Federal Register Volume 83, Number 106 (Friday, June 1, 2018)]
[Presidential Documents]
[Pages 25335-25340]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[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