President Biden on Friday knocked out the main pillars of his predecessor’s policies toward the federal workforce by repealing Trump administration orders that restricted bargaining and appeal rights and another that sought to remove civil service protections from a large class of employees.
One of the orders, issued in October, could have turned tens of thousands of career employees — or more — essentially into political appointees, although time ran out on the Trump administration before it could make those changes.
That order — which was widely criticized for potentially politicizing the civil service — sought to move career federal employees whose work involves making or carrying out policies into a new category to be called Schedule F.
They would have lost their rights to appeal disciplinary actions up to removal, as well as the right to be represented by a union. Under the order, those positions could have been filled without competition, much as political appointees are installed.
The orders reflected the Trump administration’s general view that federal personnel policies should be more results-oriented, and that management should do more to hold employees accountable while limiting the role unions play in workplace decisions.
In its early days, the Biden administration is setting a different tone.
Biden’s order says the Schedule F policy “undermined the foundations of the civil service and its merit system principles” and that “it is the policy of the United States to protect, empower, and rebuild the career Federal workforce. It is also the policy of the United States to encourage union organizing and collective bargaining.” It told agencies to cancel any steps they had taken for carrying out the orders.
Rep. Don Beyer (D-Va.) said he is “particularly happy to see the end of Schedule F, an executive order intended to politicize the civil service that could have done a great deal of harm. . . . It is deeply gratifying to finally have an administration that values civil servants and clearly takes their interests — and the national interest they serve — to heart.”
Federal employee unions also praised the change, which Biden earlier had promised.
“Federal workers can once again have confidence in their president’s commitment to the apolitical civil service, to standing up for workers’ rights, and to upholding merit system principles that safeguard against political interference in employment decisions,” American Federation of Government Employees President Everett Kelley said in a statement.
“In a Biden administration, agencies are no longer under orders to strip long-held rights from contracts, run roughshod over employees and unilaterally impose workplace policies that disrespect their service to our country,” said National Treasury Employees Union President Tony Reardon.
However, the ranking Republican on the House Oversight and Reform Committee, Rep. James Comer (Ky.), said Biden “is seeking to allow massive bureaucratic power to go unchecked. The American people must be able to hold all federal employees — elected and unelected — accountable for their actions.”
About 1.2 million of the 2.1 million executive branch employees apart from the U.S. Postal Service are represented by labor unions that may bargain over a variety of working conditions and policies, although not directly over pay and benefits.
One of three orders issued by President Donald Trump on the same day in 2018, though, said that negotiations “often make it harder for agencies to reward high performers, hold low-performers accountable, or flexibly respond to operational needs.”
It told agencies to bargain over only the minimum topics required by law and not over any workplace policies that are negotiable at management’s choosing; set time frames for negotiations; encouraged agencies to promptly invoke outside arbitration if those deadlines are not met; and to file a complaint against the union or simply impose management’s terms if the union does not meet standards it set for good-faith bargaining.
A second order addressed “official time” — paid time for employees to fulfill certain union responsibilities. While civil service law allows for such time, the amounts are set in bargaining at each agency. The order told agencies to limit the amount they may agree to as well as the purposes for which it could be used.
The third order told federal agencies to provide employees only the required minimum chance to improve before being subject to discipline. It also told agencies to make the fullest use of their discretion in choosing penalties for poor performance or misconduct.
The orders further soured relations between the Trump administration and federal unions, which quickly challenged them in court. A federal judge at first blocked the main parts of all three but an appeals court later lifted that injunction and the Trump administration told agencies to carry them out.
Agencies then followed those instructions in new bargaining as contracts expired. Unions have filed numerous complaints at the Federal Labor Relations Authority arguing that agencies improperly imposed policies after cutting bargaining short.
The Trump orders on bargaining and official time were statements of policy and were subject to being reversed summarily. However, the order on disciplinary practices has been formalized in regulations. A new rulemaking process may be needed to get them off the books.
Biden on Wednesday had canceled another Trump administration order on the federal workforce, one issued in September. It generally halted diversity and inclusion training provided by agencies by requiring a review of whether the content included “divisive concepts” such as “race or sex stereotyping or any other form of race or sex scapegoating.”
Federal unions applauded that decision by Biden as well. “Any professional education program that helps us better understand and respect our co-workers of different races, genders, sexual orientations, gender identities, nationalities or religious beliefs is a sign of progress in a civilized society, not a threat to it, and we believe the federal workplace can and should lead in this effort,” Reardon said.
Comer objected. He said “allowing destructive ideologies like critical race theory in the federal workplace is divisive and not a good use of taxpayer dollars. . . .Using American taxpayer dollars to advance a radical, woke agenda designed to stir disdain for American values has no place in our federal agencies.”
Another early order from Biden had told agencies to review their internal personnel practices — along with their policies in general — to assure that they protect against discrimination on the basis of gender identity and sexual orientation, as required by a 2020 U.S. Supreme Court decision.