The Obama administration quietly changed its furlough guidance Friday to allow government employees who are also union representatives to return to work and receive a regular paycheck during the government shutdown.
On the fifth day of the government shutdown the House unanimously passed a a bill approving back pay for 800,000 furloughed federal workers, a rare moment of bipartisan unity, even as House Republicans and Democrats continued their bitter budget standoff.
The vast majority of those workers do not serve as union representatives and will not receive a pay check as long as the government remains shuttered. But the Office of Personnel Management Friday opened the door for some of their co-workers, those who serve as union representatives, to return to work and get their regular paycheck.
OPM, a government agency that manages all federal employee issues, originally issued written guidance instructing government workers on furlough questions on Sept. 30 in preparation for the expected Oct. 1 shutdown.
That guidance answers a variety of questions federal workers might have during the shutdown, such as the definition of an “excepted” employee, those whose salaries are not funded by annual appropriations and must continue working, and whether employees can opt to continue showing up for work even if they are furloughed.
Deep into the guidance, OPM posed the question of whether government workers who are also union representatives could continue working on official time during a shutdown.
It concluded that, under federal law, only “excepted” employees -- those expected to show up and get a paycheck as usual -- could conduct union work for pay. Any labor-oriented work would have to be on a voluntary basis and “could not be working on official time or in any other way incurring obligations that would require subsequent agency payment.”
On Friday OPM issued updated guidance that provides several carefully crafted carve-outs for furloughed government workers to perform union work on official, paid time.
The new guidance says furloughed government workers can perform union work on official time if federal law allows it. For instance, the document says, if an “agency has determined that a management action taken during a shutdown is permissible because it is an excepted activity, and such action triggers union representational rights under the collective bargaining agreement.”
The guidance instructs workers to consult with the general counsel at their individual government department or agency to determine if union activity is allowed under federal law.
Neither OPM, the Office of Management and Budget nor the American Federation of Government Employees, the top federal government worker union, immediately returned requests for comment.
Conservatives deeply opposed to taxpayer funded union activity accused the Obama administration of sneaking changes into the guidance to provide a a way to allow union members to return to work.
“While the changed guidance is couched in benign terms, it clearly opens the door for taxpayer-funded union employees to return from furlough under the guise of union representation issues,” said Richard Manning, the vice president of Americans for Limited Government.
“It is absurd that taxpayers fund public union employees in the first place, and for these union workers to be given special status by this administration through a clever change in the furlough rules, is a slap in the face to those furloughed federal employees who actually do the people's work,” he continued.
Before the OPM issued new guidance, some government workers who are members of AFGE had complained about being confused about their status during the shutdown and having no one to represent their views.
Howard Egerman, a Social Security Administration employee who must continue working without pay while the government is technically closed, said the government shutdown effectively shutdown unions as well.
“While we may be working for pay or not for pay, depending on Congressional whim, we Social Security workers find ourselves literally defenseless,” he wrote Friday on www.labornotes.org. “We have been given all kinds of conflicting advice about our status, but we cannot have our union, [AFGE], represent us—nor can union reps and officials get released time to represent people.”
He put the blame squarely on “lawyers at the Office of Personnel Management” who have ruled that – while federal unions, according to the Civil Service Act of 1980, are in the public interest – union officials cannot be released to do representational duties during a government shutdown.”
“So we find that Congress, besides possibly creating a new class of involuntary servitude for federal employees, has also acted to attempt to bust our union.”