Attacking from the top down

In his own understated management style, President By BRIAN MINNICH Trump is taking Executive Vice President on government employee unions with the goal of making them more transparent and less overtly political

or better or worse, the Trump administration has been anything but conventional, upending entrenched practices and assumptions and wading into policy issues long left unaddressed. The field of labor relations, particularly in government, is no exception. F

While blue-collar support, especially in the Midwest, was key to Trump’s election, his administration has recognized there are important differences between unions representing private-sector workers and those representing public employees.

Of equal importance, the administration has recognized the interests of unions as organizations do not always align with the interests of the employees they represent.

Beginning in earnest in 2018, the administration has rolled out a series of solid labor policy reform measures.

First out of the gate was a series of three presidential executive orders in the spring of 2018 that sought to, among other things, reign in taxpayer funding of union business, increase the efficiency of the collective bargaining process between federal agencies and unions and streamline the employee discipline and removal process.

Although collective bargaining in the federal government is governed by the Federal Service Labor-Management Relations Statute of 1978, which grants certain rights to unions, decades of bargaining have resulted in certain practices developing far beyond what the law required.

The trio of executive orders attempted to roll back many of the less defensible practices as far as possible under the statute.

Take, for example, official time. Federal law recognizes that, under certain conditions, federal workers who are also union officers can perform union business while on the clock as taxpayer-paid government employees.

But while the law grants unions the right to use official time for certain activities, federal agencies have often consented to provide far more official time than required, in some cases resulting in hundreds of employees in large agencies working full-time on union business while receiving a government salary.

Under Executive Order 13837, however, agencies are directed to generally agree to no more than one hour of official time per year for each union-represented employee when bargaining new union contracts.

While unions delayed the order’s implementation with ultimately unsuccessful federal litigation, since 2019 the order has resulted in significant reductions in grants of official time, to the benefit of taxpayers and efficient government.

Meanwhile, federal agencies have also begun to pick up the pace on important labor reform regulations.

In July 2019, the Federal Labor Relations Authority (FLRA), which oversees and administers collective bargaining laws in the federal government, solicited public comments on a proposal to make it easier for federal employees to cancel the deduction of union dues from their wages.

President John F. Kennedy extended collective bargaining to federal employees via executive order in 1962, and Congress eventually followed up by enshrining collective bargaining in federal law in 1978.

But unlike many of their less fortunate counterparts working for state and local government, at no point have federal employees been required to pay union dues as a condition of employment.

Nevertheless, past FLRA decisions had interpreted federal law as limiting employees’ ability to cancel union dues deductions from their wages, once begun, to narrow annual intervals.

But, as the Freedom Foundation explained in a comment submitted to the FLRA, the law only says that dues deduction authorizations “may not be revoked for a period of one year,” not automatically renewing one-year intervals. One year after a federal employee authorizes dues deductions, he or she should be free to cancel such deductions at any time.

In a February 2020 decision, the FLRA announced it agreed with this interpretation and that it would update its regulations accordingly. Once that process concludes, federal employees will have that much more control over their wages and participation with a union.

Still, more freedom of choice is of limited benefit without the information needed to make an informed decision.

Thankfully for the millions of state and local public employees freed from mandatory union dues payments by the U.S. Supreme Court’s 2018 decision in Janus v. AFSCME, the U.S. Department of Labor (DOL) is advancing two regulations that would help make unions more financially transparent.

The first regulation, proposed by DOL in the spring of 2019, would require certain union-operated trusts to file publicly available financial reports annually with DOL disclosing things like staff and officer compensation and an itemization of all receipts and disbursements of more than $5,000.

Two of the highest-profile union scandals in recent years involved the

financial dealings of union officers administering various employment trusts.

In early 2019, federal officials brought charges against the president and various officers of the International Brotherhood of Electrical Workers Local 98 in Philadelphia for criminal activity involving, among other things, embezzling funds from the union and its training and apprenticeship fund.

More recently, the continuing and high-profile federal investigation into the operations of the United Auto Workers — which has already resulted in multiple criminal indictments of highranking UAW officials — uncovered wrongdoing that involved, among other things, misuse of funds meant for a union training center.

DOL’s regulation, which was finalized in March 2020, would go a long way towards exposing and preventing misconduct of this kind from occurring in the future. And, while the regulation makes unions more accountable to their members, it would have benefits for taxpayers, too.

As the Freedom Foundation explained in a comment to DOL supporting the proposal, unions representing home caregivers serving Medicaid-eligible clients are increasingly creating trusts to administer certain tax-funded employment benefits.

In Washington state, SEIU 775 operates several multi-million-dollar trusts, funded with tax dollars, that presently operate with effectively no financial transparency but will presumably be covered by DOL’s regulation.

Unfortunately, legal challenges from unions may delay the effective date of the rule for some time. Nevertheless, litigation is probably not the greatest threat to the regulation.

A similar regulation was promulgated during the George W. Bush administration and survived various union legal challenges. However, the Barack Obama

administration repealed the regulation muddled in practice, however, due to treated separately. Some local unions before it formally took effect. unions’ internal structure. affiliated with NEA represent private

Along similar lines, DOL proposed Most major unions consist of a chain sector employees, so they, and every a regulation early this year to of distinct but affiliated entities. affiliated entity above them up to extend financial transparency and For example, unionized public school the NEA headquarters, must file other measures meant to protect teachers in a given district in Washington financial reports with DOL under the union democracy to certain unions state are technically represented by their LMRDA. But in many states — such as representing public employees local union — the Olympia Education Washington, Oregon and California — that have historically avoided such Association. NEA affiliates only represent public requirements. This entity has its own bylaws, elects employees and, consequently, have

Since 1959, the Labor-Management it own officers and negotiates and been beyond the reach of the LMRDA. Reporting and Disclosure Act (LMRDA) administers the collective bargaining Under DOL’s proposed regulation, has required unions representing agreement covering the teachers in the however, “intermediate bodies” above any private-sector employees to district. local unions but below a national union annually file detailed financial But it is affiliated with a regional subject to the LMRDA would now also statements with DOL. union entity, known as the be subject to the law.

However, unions representing only non-federal public employees were "(Janus was a) ruling in favor of nonUniServ, the statewide

Washington Education

Association, and the

National Education

A portion of the dues

The upshot is that many state-level teachers unions and certain other government unions would have to begin disclosing their financial activity to DOL not subject union workers who Association (NEA) and their members. to similar requirements, leaving their members in the dark about how are now ... able to support a candidate of his or her choice without having those in Washington, D.C., each of which has its own bylaws, staff and budget.

This distinction can get somewhat the Union deciding for them." from each member will go to each of these affiliated entities. safeguards against misconduct.

Additionally, these entities would be subject to the other provisions of the LMRDA, including its “Bill of Rights” for union members, minimum standards for the conduct of union elections, union dues are who control the local union collects and requirements for various internal spent.

The Freedom Foundation submitted a comment supporting the regulation For purposes of LMRDA and assisted dozens of public employees "I love reporting, each level in the union hierarchy is in doing so as well. One public employee wrote, the right to work. I like it better because it is lower. It is better for the people. You are not paying the big fees to the unions." "I fight the unions the time, and I fight them very hard. But there are certain areas of the country where you only have unions.

You don't have right to work."

“I have been an AFSCME member of Local 2 for 5 years and in that time have never seen an accounting on where my dues go… I’m disgusted by what I see as little to no oversight on the union’s activities. I feel our local acts in self-interest without regard to its members. I want transparency in my union…”

While not yet finalized, the regulation’s fate will probably be determined by the same factors as DOL’s union trust regulation.

Once finalized, the rule will undoubtedly be subject to union legal challenges, but a previous version of the rule survived such challenges during the Bush administration before being rescinded by the Obama administration.

The real question for each of these promising regulatory actions Trump on Unions is whether they can be implemented, survive the inevitable legal challenge, and take effect without a different administration pulling the plug.

Only time will tell.