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Executive Order 13837: Ensuring Transparency, Accountability, and Efficiency in Taxpayer Funded Union Time Use was a presidentialexecutive order issued byPresidentDonald 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]

PresidentJoe Biden (D) revoked E.O. 13837 on January 22, 2021, viaE.O. 14003.

Background

PresidentTrump issued threeexecutive orders on May 25, 2018, aimed at improving efficiency and accountability within the federalcivil service. Executive Order 13837, titled "Ensuring Transparency, Accountability, and Efficiency in Taxpayer Funded Union Time Use," sought to ensure that federal employees used government-funded union time in an efficient manner and did not misuse federal resources in support of collective bargaining activities. Government-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 government-funded union time in 2016, according to a May 2018 press release from theU.S. Office of Personnel Management (OPM). The OPM also observed that costs associated with government-funded union time had been continually increasing prior to the issuance of E.O. 13837. Between 2014 and 2016, the OPM reported that government-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 21Republican members of theU.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 23Democratic 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 theCivil 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:

Government-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 government-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 government-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 government-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 government-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 government-funded union time:^[1]

• Agency employees who use government-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 government-funded union time.
• Each agency was required to develop a system to monitor the use of government-funded union time.

Reporting

The order required agencies to submit an annual report to the OPM detailing all use of government-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 government-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, andE.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, andExecutive 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. TheUnited States Court of Appeals for the District of Columbia Circuit on October 3 issued a mandate to implement itsJuly 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

TheUnited States Court of Appeals for the District of Columbia Circuit issued an order on September 25, 2019, declining to rehearAmerican 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 rehearingen 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 ofAmerican Federation of Government Employees, AFL-CIO, et al. v. Trump before the fullUnited 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 theFederal Service Labor-Management Relations Statute requires labor practice complaints to be brought before theFederal Labor Relations Authority (FLRA).^[12]

August 2019: SEIU files new lawsuit claiming civil service executive orders exceed president's constitutional authority

A chapter of theService Employees International Union (SEIU) representingU.S. Department of Veterans Affairs employees inBuffalo, New York, filed a lawsuit in theUnited 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 theCivil Service Reform Act. The union claimed that the district court had jurisdiction over the case in part because theFLRA had lacked a general counsel for almost two years—preventing the agency from hearing unfair labor practice complaints.^[13]

Because theUnited States Court of Appeals for the 2nd Circuit has appellate jurisdiction over theUnited States District Court for the Western District of New York, theD.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 theUnited States Court of Appeals for the District of Columbia Circuit on July 16, 2019, reversed and vacated the district court ruling. JudgesThomas Griffith,Srikanth Srinivasan, andArthur 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 theFLRA as required by theFederal 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

TheUnited States Court of Appeals for the District of Columbia Circuit heard oral arguments in the appeal on April 4, 2019. An attorney for theU.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 theFederal 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

TheOffice 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

TheDOJ appealed the district court's ruling on September 25, 2018. The notice of appeal was filed with theUnited 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

JudgeKetanji Brown Jackson of theUnited 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 government-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]

ADOJ 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 agencyguidance 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 ofExecutive 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 theCivil 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, andE.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

• Donald Trump
• U.S. Office of Personnel Management
• Executive order

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

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United States Terms Adjudication (administrative state) •Administrative judge •Administrative law •Administrative law judge •Administrative state •Arbitrary-or-capricious test •Auer deference •Barrier to entry •Bootleggers and Baptists •Chevron deference (doctrine) •Civil servant •Civil service •Code of Federal Regulations •Codify (administrative state) •Comment period •Compliance costs •Congressional Record •Coordination (administrative state) •Deference (administrative state) •Direct and indirect costs (administrative state) •Enabling statute •Ex parte communication (administrative state) •Executive agency •Federal law •Federal Register •Federalism •Final rule •Formal rulemaking •Formalism (law) •Functionalism (law) •Guidance (administrative state) •Hybrid rulemaking •Incorporation by reference •Independent federal agency •Informal rulemaking •Joint resolution of disapproval (administrative state) •Major rule •Negotiated rulemaking •Nondelegation doctrine •OIRA prompt letter •Organic statute •Pragmatism (law) •Precautionary principle •Promulgate •Proposed rule •Publication rulemaking •Regulatory budget •Regulatory capture •Regulatory dark matter •Regulatory impact analysis •Regulatory policy officer •Regulatory reform officer •Regulatory review •Rent seeking •Retrospective regulatory review •Risk assessment (administrative state) •Rulemaking •Separation of powers •Significant regulatory action •Skidmore deference •Statutory authority •Substantive law and procedural law •Sue and settle •Sunset provision •Unified Agenda of Federal Regulatory and Deregulatory Actions •United States Code •United States Statutes at Large Bibliography "Administrative Law - The 20th Century Bequeaths an 'Illegitimate Exotic' in Full and Terrifying Flower" by Stephen P. Dresch (2000) "Confronting the Administrative Threat" by Philip Hamburger and Tony Mills (2017) "Constitutionalism after the New Deal" by Cass R. Sunstein (1987) Federalist No. 23 by Alexander Hamilton (1787) "From Administrative State to Constitutional Government" by Joseph Postell (2012) "Interring the Nondelegation Doctrine" by Eric A. Posner and Adrian Vermeule (2002) "Rulemaking as Legislating" by Kathryn Watts (2015) "The Checks & Balances of the Regulatory State" by Paul R. Verkuil (2016) "The Myth of the Nondelegation Doctrine" by Keith E. Whittington and Jason Iuliano (2017) "The Progressive Origins of the Administrative State: Wilson, Goodnow, and Landis" by Ronald J. Pestritto (2007) "The Rise and Rise of the Administrative State" by Gary Lawson (1994) "The Study of Administration" by Woodrow Wilson (1887) "The Threat to Liberty" by Steven F. Hayward (2017) "Why the Modern Administrative State Is Inconsistent with the Rule of Law" by Richard A. Epstein (2008) Agencies Administrative Conference of the United States •United States Civil Service Commission •U.S. Government Accountability Office •U.S. Office of Information and Regulatory Affairs •U.S. Office of Management and Budget