July 26, 2018

Harris Presses OPM Director on Restrictions to Unions that Represent Federal Employees

WASHINGTON, D.C. – At a Senate Homeland Security and Governmental Affairs subcommittee hearing today, U.S. Senator Kamala D. Harris Office pressed Office of Personnel Management (OPM) Director Jeff Pon on recent executive orders by the Trump Administration aimed at weakening unions that represent federal employees, including by restricting the amount of official time employees may use to address grievances. Official time is used by federal employees for activities such as establishing flexible work hours, enforcing protections of unlawful discrimination including sexual harassment, and providing employees a voice on working conditions.

Harris asked, “Have you ever had the responsibility of actually working with an employee on a grievance? Because if you have, you would appreciate that it takes time to establish a relationship of trust to then understand the experience they’ve had and be familiar with the facts in a way that you can sufficiently represent them in their grievance.”

“I think that that’s a very valid concern, making sure that there is our people that understand the case on both sides,” Pon responded. “Making sure that you can work with your union representative to fairly and adequately represent you. 25% of the time, I think is 10 hours a workweek. Each and every union member actually has that. And the bank we think is sufficient enough to do that.”

At the hearing, Harris also pressed Pon on the Trump Administration’s proposal to break up key functions of OPM as part of a broader government organization effort. Harris raised concerns over the proposal to move key functions of OPM to the Executive Office of the President, which may lead to a politicized federal workforce and undermine merit system principles on which the career workforce is based. OPM is the central human resources department for federal employees and is tasked with ensuring that career employees are protected from undue political pressure.

Harris continued, “Mr. Pon, by statute the OPM is an independent entity as you know, in the Executive Branch and among other things sets standards for holding managers and human resources offices accountable in accordance with merit systems and principles around making personnel decisions based upon merit… how does the OPM Director retain independence in this new organizational structure?”

“I think I’m still a direct report to our President, whether I’m across the street or not,” Pon replied. “Our merit systems accountability group reports in to me, and that organization actually enforces the merit system’s accountability approach. I think there’s enough separation between the politics and also that function that it will continue to do what it’s supposed to do.”

Full transcript of Harris’ questioning below:

Harris: Thank you. Mr. Pon, by statute the OPM is an independent entity as you know, in the Executive Branch and among other things sets standards for holding managers and human resources offices accountable in accordance with merit systems and principles around making personnel decisions based on merit. So my question is that in the reorganization plan there is a proposal that essentially will eliminate OPM. And then my concern is if OPM is eliminated, who will take on this independent role in the Executive Branch to ensure that HR decisions will be in compliance with and adhere to merit-based principles as opposed to politics?

Pon: Thank you, Senator Harris. That’s a very important question, because OPM needs to play the independent role for leading the civil service to defending the merit system’s principles that we have. OPM is going to be, in the proposed state, elevated to the Executive Office of the President, and its – when you have an organization where the head of the organization wants HR at the table, to make decisions, to be an influencer, I think that’s a very good sign in any organization. The independence, whether it’s in the EOP or not, I think we need to make sure that the OPM Director has that directive and continues to have that directive and legislation that supports that goal.

Harris: So I agree that it is important that we ensure that. My question is, how are you going to do that under the description of this reorganization, because frankly my concern is that this reorganization would put, and actually make HR policy for career staff be a function of politics and not merit. That is truly my concern.

Pon: I -

Harris: How would that – how would that be addressed? I think we agree on the goal, but how are you going to address that? 

Pon: Yeah, I think the current laws – none of the responsibilities or roles right now are proposed to change. It’s the service functions and transactional systems that is the focus of our current planning. All of the policies and the rights of the OPM Director, the role of the OPM Director, still stays in this organization and entity.

Harris: And how does the OPM Director retain independence in this new organizational structure?

Pon: Sure. I think I’m still a direct report to our President, whether I’m across the street or not. Our merit systems accountability group reports in to me, and that organization actually enforces the merit system’s accountability approach. I think there’s enough separation between the politics and also that function that it will continue to do what it’s supposed to do.

Harris: How will you deal with any pressure that is placed on you to make HR decisions based on politics and not based on merit?

Pon: That’s the role that OPM has. I swore an oath to defend the Constitution and also to uphold the office. That office is to be the leader of the civil service and defender of the merit systems principles in making sure that our civil service is a robust, free-from-politics organization.

Harris: And that’s a noble oath. Are you aware of any concerns among career staff that HR decisions are being made not based on merit but based on politics?

Pon: I have not had any conversations with any career staff about threats, about the political people exerting any undue influence in (inaudible) personnel actions or merit systems principles.

Harris: And then as you know, the Administration released three executive orders on May 25th, which appear to be aimed at weakening the unions that represent federal workers. And one of these orders, in particular, restricts the use of official time by federal employees who are a part of a union to represent their coworkers as provided by law. Among other things, official time as you know is used in such a way that it can establish flexible work hours, enforce protections against unlawful discrimination, sexual harassment being an example, and provide employees with a voice on their working conditions. So, due to the severe restrictions on the amount of official time that employee representatives can use, will agency officials then be required to stay after work hours and on weekends to address these grievances?

Pon: This proposal actually limits the official time use, taxpayer-funded union time, at 25%. We are not saying ‘don’t do it,’ we’re saying only 25%. We do have cases, such as in VA, there is over 700 employees that are on 100% time. Some of these are nurses and doctors. What we’re saying is, we hired you to be nurses and doctors for our veterans, but you can still use 25% of your time to represent your union. We think that that was a reasonable amount of time for any organization and each employee, out of 100, gets an hour of representation so the whole entire VA actually has a whole bank of hours that they can spread across each individual at a 25% of the time.

Harris: So, in the event that 25% of the time is insufficient to meet the concerns about working conditions, about allegations of discrimination or sexual harassment, in the event that 25% of the time is insufficient to address those grievances, what allocation are you making and what have you set up in this system to allow those grievances to be met if it exceeds the 25%? My question specifically is, are you requiring then that folks will stay on weekends and after work to address it if you’re not allowing them to do it during work hours?

Pon: So it’s 25% of the time and the bank. So it’s exhaustive in terms of if you exhaust the whole entire bank, but for an individual they can only represent the union 25% of the time. That does not preclude another union member, 25% of the time, to use that bank of hours. So it’s more making sure that we have allotted a certain amount of hours and also limited the amount of time to 25% of a person’s work role –

Harris: I just have a few seconds left, and I appreciate your point in theory, but have you ever had the responsibility of actually working with an employee on a grievance? Because if you have, you would appreciate that it takes time to establish a relationship of trust to then understand the experience they’ve had and be familiar with the facts in a way that you can sufficiently represent them in their grievance. And the idea then, that if you’ve hit that 25% mark and so it’s going to have to go a bank and another person is going to have to represent that employee, you can imagine how things will fall through the cracks and that employee will not be appropriately represented in the case of a sexual harassment grievance. So how are you going to deal with that?

JP: I think that that’s a very valid concern, making sure that there is our people that understand the case on both sides. Making sure that you can work with your union representative to fairly and adequately represent you. 25% of the time, I think is 10 hours a workweek. Each and every union member actually has that. And the bank we think is sufficient enough to do that. Usually, within these things it’s just not one person representing you, it’s two or three people and in the case of real experience and working at agencies, there’s usually teams of people that are working with the person that’s grieving.

Harris: Thank you.

Pon: Thank you, Senator Harris.

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