‘Guerrilla’ War on Federal Workforce Will Take Time to Unravel

Nov. 3, 2020, 4:00 PM

The future of federal workers’ rights and the strength of their unions hinge on the presidential election, as a Trump victory would build on four years of White House and agency actions curtailing labor protections. A Biden win, however, won’t necessarily lead to an immediate reversal of many of those changes.

Less than two weeks before Nov. 3, President Donald Trump signed an executive order that would usher in radical changes to the civil service system by making it easier to hire and fire tens of thousands of federal workers in policymaking jobs.

The order, which has already been hit with a legal challenge, joins a series of executive actions, rulemakings, agency decisions, and legislation that critics say make it easier to discipline federal workers, as well as weaken their unions by curbing collective bargaining rights and time spent on lobbying and worker representation.

Trump’s approach to the federal workforce—and particularly the order that creates a new “Schedule F” for policymaking jobs held by career employees—amounts to “guerrilla warfare on the entire civil service system,” said Diane Seltzer Torre of the Seltzer Law Firm in Bethesda, Md. Seltzer Torre represents both employers and workers, including federal employees, in employment disputes.

But Rachel Greszler, a research fellow at the Heritage Foundation, which describes its mission as supporting free enterprise and limited government, described the Schedule F order as a “commonsense change” that could significantly improve government effectiveness.

“Imagine if a CEO was prevented from disciplining or dismissing managers who refused to carry out her directives or who took actions to thwart her initiatives,” Greszler said. “That’s the case right now within the federal government, where it’s extremely difficult—sometimes seemingly impossible—to fire federal employees.”

Trump’s reelection would allow the administration to fully implement that order and other changes it’s introduced over the last four years. If Joe Biden wins, executive orders can be thwarted by new executive orders. However, changes made through legislation, agency regulations, and administrative law processes will take longer to undo.

In the short run, action on the Schedule F order—which became effective immediately—could come on Jan. 19, when a preliminary review of agency jobs covered by the order is due. Though a President Biden could overturn the order as soon as he’s inaugurated, any changes that affect specific employees may need to be individually adjudicated.

The White House, its Office of Management and Budget, and the Office of Personnel Management didn’t respond to emails requesting comment on the Schedule F order and the Trump administration’s federal sector changes.

Schedule F Order

Trump’s Oct. 21 order creates a new class of policymaking employees that don’t have the same job protections as most other federal workers. For example, the order gives agencies “the flexibility to expeditiously remove poorly performing employees” from policy positions without “facing extensive delays or litigation.”

The National Treasury Employees Union sued the Trump administration over the order, arguing it’s unlawful and that the union itself is already facing harm because of the resources it’s devoted to challenging the order.

“We’ve had a lot of practice these last four years deploying resources in these venues to combat repeated attacks by the administration on federal employees, federal sector unions, and the integrity of the civil service,” NTEU President Tony Reardon said.

The period between Election Day Nov. 3 and Inauguration Day Jan. 20 likely will be full of anxiety for federal workers no matter who wins the election because of the Schedule F order, said Stuart Shapiro, associate dean of faculty at Rutgers University’s Bloustein School of Planning and Public Policy.

The order could be used to move existing federal employees into Schedule F, and thus reduce their due process rights, said Robert Shea, an associate director at the White House Office of Management and Budget under President George W. Bush. Or it could be applied to hire new employees, including Trump political appointees now in Schedule C, which doesn’t require Senate confirmation, Shea said.

Either scenario would be controversial, he said.

“There are laws and rules against burrowing,” or improperly moving political appointees into career positions, he said. “Now they have a legitimate schedule to be put in,” which could complicate efforts to root out former political appointees, Shea said.

Executive Actions

The majority of the Trump administration’s federal sector changes have been done by executive order, said Jeff Friday, general counsel for the National Federation of Federal Employees. This occurred despite promises by Jeff Pon, Trump’s first Senate-confirmed OPM director, of a “bold and ambitious” agenda that would include comprehensive legislation to overhaul the civil service.

One exception is legislation signed by Trump in June 2017 that curtailed the job rights of Veterans Affairs Department employees, Friday said.

The way the administration has gone about making changes couldn’t have been predicted based on its early actions. Trump, for example, didn’t set aside the federal labor-management forums established by President Barack Obama until September 2017, a belated use of his authority compared with some of his predecessors.

Three other federal workforce orders, issued by Trump in May 2018, have also faced litigation. Those orders made it easier to fire federal employees, required agencies to review existing labor agreements for cost savings, and restricted federal workers who act as union officials from using more than 25% of their work hours for that purpose.

Legal challenges against them have largely been thrown out as of now, including by a federal appeals court in the District of Columbia. The Office of Personnel Management recently moved forward with regulations (RIN 3206–AN60) to implement the orders, while other agencies including the Equal Employment Opportunity Commission have proposed rules to enforce them.

“Anything done by order is easier to undo by order,” Shapiro of Rutgers said.

“If a regulation has been finalized and upheld in court, in order to get rid of it you have to engage in the same process,” including issuing a proposed rule, obtaining public comments, and finalizing the rule, Shapiro said.

Labor Panel Changes Ahead?

Outside of executive orders and rulemaking by OPM, the Federal Labor Relations Authority, which oversees the labor relations program for unionized federal workers, has made it easier for federal employees to quit unions and made it harder for unions to lobby.

“FLRA rulings stay in effect until superseded by new FLRA decisions. That means that Biden would have to get at least one new authority member confirmed to replace one of the now-serving Republican appointees,” said Bill Wiley, a San Francisco-based management-side attorney who was chief of staff to the FLRA general counsel in the early 1990s.

Ernest DuBester currently is the sole Democrat on the three-member FLRA appellate panel within the labor relations agency. He has consistently dissented against the Republican majority. One of the panel’s two Republicans, James Abbott, is in holdover status, meaning that his term has expired and he can be asked to step down or be replaced by a new Senate-confirmed member.

“Replace an existing Republican member with a Democrat, and that person plus DuBester could vote the case law in a new direction. Or, perhaps even issue advisory memos without having a case to adjudicate,” as the Republican FLRA has done, Wiley said.

To contact the reporter on this story: Louis C. LaBrecque in Washington at llabrecque@bloomberglaw.com

To contact the editors responsible for this story: Jay-Anne B. Casuga at jcasuga@bloomberglaw.com; Karl Hardy at khardy@bloomberglaw.com

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