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OFFICIAL TIME: GOOD VALUE FOR THE

TAXPAYER?

HEARING

BEFORE THE

SUBCOMMITTEE ON FEDERAL WORKFORCE,

U.S. POSTAL SERVICE AND LABOR POLICY

OF THE

COMMITTEE ON OVERSIGHT

AND GOVERNMENT REFORM

HOUSE OF REPRESENTATIVES

ONE HUNDRED TWELFTH CONGRESS

FIRST SESSION

JUNE 1, 2011

Serial No. 112–51

Printed for the use of the Committee on Oversight and Government Reform

(

Available via the World Wide Web: http://www.fdsys.gov

http://www.house.gov/reform

(II)

COMMITTEE ON OVERSIGHT AND GOVERNMENT REFORM

DARRELL E. ISSA, California, Chairman

DAN BURTON, Indiana

JOHN L. MICA, Florida

TODD RUSSELL PLATTS, Pennsylvania

MICHAEL R. TURNER, Ohio

PATRICK T. MCHENRY, North Carolina

JIM JORDAN, Ohio

JASON CHAFFETZ, Utah

CONNIE MACK, Florida

TIM WALBERG, Michigan

JAMES LANKFORD, Oklahoma

JUSTIN AMASH, Michigan

ANN MARIE BUERKLE, New York

PAUL A. GOSAR, Arizona

RAU ́ L R. LABRADOR, Idaho

PATRICK MEEHAN, Pennsylvania

SCOTT DESJARLAIS, Tennessee

JOE WALSH, Illinois

TREY GOWDY, South Carolina

DENNIS A. ROSS, Florida

FRANK C. GUINTA, New Hampshire

BLAKE FARENTHOLD, Texas

MIKE KELLY, Pennsylvania

ELIJAH E. CUMMINGS, Maryland, Ranking

Minority Member

EDOLPHUS TOWNS, New York

CAROLYN B. MALONEY, New York

ELEANOR HOLMES NORTON, District of

Columbia

DENNIS J. KUCINICH, Ohio

JOHN F. TIERNEY, Massachusetts

WM. LACY CLAY, Missouri

STEPHEN F. LYNCH, Massachusetts

JIM COOPER, Tennessee

GERALD E. CONNOLLY, Virginia

MIKE QUIGLEY, Illinois

DANNY K. DAVIS, Illinois

BRUCE L. BRALEY, Iowa

PETER WELCH, Vermont

JOHN A. YARMUTH, Kentucky

CHRISTOPHER S. MURPHY, Connecticut

JACKIE SPEIER, California

LAWRENCE J. BRADY, Staff Director

JOHN D. CUADERES, Deputy Staff Director

ROBERT BORDEN, General Counsel

LINDA A. GOOD, Chief Clerk

DAVID RAPALLO, Minority Staff Director

SUBCOMMITTEE ON FEDERAL WORKFORCE, U.S. POSTAL SERVICE AND LABOR

POLICY

DENNIS A. ROSS, Florida, Chairman

JUSTIN AMASH, Michigan, Vice Chairman

JIM JORDAN, Ohio

JASON CHAFFETZ, Utah

CONNIE MACK, Florida

TIM WALBERG, Michigan

TREY GOWDY, South Carolina

STEPHEN F. LYNCH, Massachusetts,

Ranking Minority Member

ELEANOR HOLMES NORTON, District of

Columbia

GERALD E. CONNOLLY, Virginia

DANNY K. DAVIS, Illinois

(III)

C O N T E N T S

Page

Hearing held on June 1, 2011 ................................................................................. 1

Statement of:

Curry, Timothy F., Deputy Associate Director, Partnership and Labor

Relations, U.S. Office of Personnel Management; F. Vincent Vernuccio,

labor policy counsel, Competitive Enterprise Institute; James Sherk,

senior policy analyst in labor economics, the Heritage Foundation; and

John Gage, national president, American Federation of Government

Employees ...................................................................................................... 28

Curry, Timothy F. ..................................................................................... 28

Gage, John ................................................................................................. 55

Sherk, James ............................................................................................. 45

Vernuccio, F. Vincent ................................................................................ 36

Gingrey, Hon. Phil, a Representative in Congress from the State of Georgia ................................................................................................................... 14

Letters, statements, etc., submitted for the record by:

Cummings, Hon. Elijah E., a Representative in Congress from the State

of Maryland, prepared statement of ............................................................ 7

Curry, Timothy F., Deputy Associate Director, Partnership and Labor

Relations, U.S. Office of Personnel Management, prepared statement

of ..................................................................................................................... 30

Gage, John, national president, American Federation of Government Employees, prepared statement of .................................................................... 57

Gingrey, Hon. Phil, a Representative in Congress from the State of Georgia, prepared statement of ........................................................................... 16

Lynch, Hon. Stephen F., a Representative in Congress from the State

of Massachusetts, prepared statement of ................................................... 12

Ross, Hon. Dennis A., a Representative in Congress from the State of

Florida, prepared statement of .................................................................... 4

Sherk, James, senior policy analyst in labor economics, the Heritage

Foundation, prepared statement of ............................................................. 47

Vernuccio, F. Vincent, labor policy counsel, Competitive Enterprise Institute, prepared statement of .......................................................................... 38

(1)

OFFICIAL TIME: GOOD VALUE FOR THE

TAXPAYER?

WEDNESDAY, JUNE 1, 2011

HOUSE OF REPRESENTATIVES, SUBCOMMITTEE ON FEDERAL WORKFORCE, U.S. POSTAL

SERVICE AND LABOR POLICY, COMMITTEE ON OVERSIGHT AND GOVERNMENT REFORM, Washington, DC.

The subcommittee met, pursuant to notice, at 1:34 p.m., in room

2154, Rayburn House Office Building, Hon. Dennis A. Ross (chairman of the subcommittee) presiding.

Present: Representatives Ross, Amash, Gowdy, Lynch, Norton,

Connolly, and Davis.

Staff present: Ali Ahmad, communications advisor; Sharon

Casey, senior assistant clerk; Jennifer Hemingway and Mark D.

Marin, senior professional staff members; Christopher Hixon, deputy chief counsel, oversight; Ryan Little and James Robertson, professional staff members; Laura L. Rush, deputy chief clerk; Peter

Warren, legislative policy director; Jaron Bourke, minority director

of administration; Kevin Corbin, minority staff assistant; and William Miles, minority professional staff member.

Mr. ROSS. Good afternoon. I will call the Subcommittee on Federal Workforce, U.S. Postal Service and Labor Policy to order. It

looks like we might have votes between 2:15 and 2:30, so we will

try to get as much done as we can.

I will do my opening statement, and then I think the ranking

member, Mr. Lynch, should be here by then. After his opening

statement, we will go into our first panel, and then after that we

will set up for our next panel and questions.

With that, I will begin with the reading of our oversight committee mission statement: We exist to secure two fundamental

principles; first, Americans have a right to know that the money

Washington takes from them is well spent; and second, Americans

deserve an efficient, effective government that works for them.

Our duty on the Oversight and Government Reform Committee

is to protect these rights. Our solemn responsibility is to hold government accountable to taxpayers because taxpayers have a right

to know what they get from their government. We will work tirelessly, in partnership with citizen watchdogs, to deliver the facts to

the American people and bring genuine reform to the Federal bureaucracy. This is the mission of the Oversight and Government

Reform Committee.

I will now move into my opening statement. Work time that Federal employees spend performing tasks for labor unions instead of

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the assigned duty at work they were hired to perform is referred

to as ‘‘official time.’’ In 2002, former Office of Personnel Management Director Kay Coles James issued a memorandum directing

each Federal Government Department and agency to report on the

number of hours of official time used by employees. After the

issuance of the James’ memo, OPM publicly released a report on

official time usage each March until 2009, when it inexplicably

ceased reporting this information.

Repeated requests for the Report on Official Time Usage for Fiscal Year 2009 were made by the Competitive Enterprises Institute

and Representative Phil Gingrey of Georgia. However, the report

was not produced until after Chairman Issa and I sent a letter to

OPM requesting it on April 21st. Last month, OPM finally issued

an interim response to our request, 19 months following the end of

fiscal year 2009.

The report indicated that Federal employees spent nearly 3 million hours of official time on union activities in 2009. This came at

a cost of $129 million to American taxpayers, $8 million higher

than the previous fiscal year. To put these numbers in perspective,

American taxpayers spent enough on official time activity in 2009

to fund a full-time work force of over 1,400 employees for an entire

year at an average annual salary of $90,000.

OPM’s lengthy delay in releasing information related to official

time raises serious transparency concerns, but the very necessity of

allowing Federal employees to conduct union activities at taxpayer

expense also needs to be explored. There is no evidence that official

time has a positive impact on productivity. When an employee is

on official time, he or she is not available to perform the duties for

which they were hired. I ask, Can we afford such charity, given the

fiscal problems facing our country?

Congressman Gingrey has introduced the Federal Employee Accountability Act to do away with official time, which will save taxpayers an estimated $1.2 billion over 10 years. I am proud to be

a cosponsor of that legislation. I will myself be introducing a bill

in response to OPM’s failure to live up to the Obama administration’s transparency pledge. My bill will mandate the production of

an annual official time report no later than March 31st of each calendar year. Americans deserve to know how their taxpayer dollars

are being spent. OPM’s delay in reporting information on the use

of official time, coupled with the National Labor Relations Board’s

decision to sue Boeing as well as the States of Arizona and South

Dakota, raises concerns as to whether this administration is pursuing a decidedly pro-union agenda at the expense of a sound work

force policy.

At a time when our economy is in a recession and budget deficits

are at staggering record levels, efficiency is imperative. Taxpayers

should not have to continue footing the bill for union welfare, particularly when little evidence exists that official time is improving

government productivity.

This hearing presents an opportunity for lawmakers on this committee to hear important testimony about whether official time is

a good value for the American taxpayer. I thank the witnesses for

appearing here today, and I look forward to their testimony.

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I would recognize the ranking member of the full committee, Mr.

Cummings from Maryland.

[The prepared statement of Hon. Dennis A. Ross follows:]

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Mr. CUMMINGS. Thank you very much, Mr. Chairman.

Today’s hearing will not increase government efficiency or value

to the taxpayer. This hearing, like the other labor policy hearings

this committee has held, is meant to provide justification for removing workplace rights for public workers. It mirrors what Republican Governors around the country are doing to public workers

in their States. That is why today we are focusing on a program

that consumes a tiny fraction of Federal employee time and actually saves the taxpayers money.

Federal employee unions enjoy few of the rights of private sector

unions. Federal employees may not strike, and in most circumstances they are legally precluded from negotiating pay or benefits. There are strict limits to what may be done on official time.

It cannot be used to solicit membership in unions or perform other

union-specific or political business.

Federal employees may, on official time, perform certain representational duties. They can negotiate with management to set

employment standards and find solutions to problems arising in

the workplace. These efforts can improve the operation of the Federal Government. For example, official time can improve personnel

management by enabling facilities to develop internal dispute resolution processes.

More than 14 years ago at Fort Sam Houston in San Antonio,

union leadership and Army management instituted a negotiated alternative dispute resolution program. During that time, only three

grievances have gone to a third-party arbitration. The alternative

dispute resolution panels, which are composed of both management

and bargaining unit employees, are empowered to investigate and

make decisions on employee complaints. This process is estimated

to have saved the Federal Government thousands of dollars in

third-party expenses at this one installation alone.

In recent years, the average number of official time hours per

bargaining unit employee has declined. In 2009, bargaining unit

employees on the average dedicated just 2.58 hours to official time

over the course of the entire year. When compared to the costs of

formal dispute resolution, the time savings are substantial.

Official time allows Federal employees and managers to concentrate on ensuring that work is completed on time and that considerations regarding work conditions are handled quickly, effectively, and cooperatively.

Today, we will hear from my colleague Mr. Gingrey, who I have

a tremendous amount of respect for, who will speak on H.R. 122,

which is legislation he introduced basically to eliminate the use of

official time for elected Federal employee union representatives to

engage in representation activities on behalf of collective bargaining unit employees.

Again, Mr. Chairman, H.R. 122 seems to be a solution in search

of a problem. While there are costs associated with official time,

the benefits far outweigh the costs. No evidence has been presented

to this subcommittee to suggest that eliminating official time would

result in any cost savings. To the contrary, alternative dispute resolution panels, like those at Fort Sam Houston, save the government from the steep costs associated with employment-related litigation.

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Mr. Chairman, there is tremendous value in allowing employees

and management to solve problems together internally. If official

time is prohibited, those efforts would also be considerably reduced,

an outcome that would not be beneficial to employees, management, or the taxpayer.

And with that, I yield back and thank the chairman for his courtesy.

Mr. ROSS. Thank you, Mr. Cummings.

[The prepared statement of Hon. Elijah E. Cummings follows:]

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Mr. ROSS. I now recognize the chairman of the full committee,

the gentleman from California, for his opening statement.

Chairman ISSA. I thank the chairman, and I thank the ranking

member for his comments, because usually we go in the other

order, and I think today it is particularly important that I go afterwards because I have worked in union shops, and I have worked

in non-union shops. This is the only government shop I have ever

worked in other than the Army. It is very clear that the ranking

member, although he may be well intended, is missing the point.

Elimination of official time would not eliminate decisions by

management and labor representatives to do alternative dispute

resolution to do other things that was determined by management—I repeat, determined by management—to be productive or

helpful. If the ranking member believes that the gentleman from

Georgia’s legislation doesn’t do that, as we go through the process,

once it is presented to us, I would pledge to make sure that it did,

in fact, still allow management to expend official time in order to

get to the final and best resolution, regardless.

But I think there is a huge different debate here, and as we hear

from the Congressman from Georgia, I think what we are going to

hear is, in fact, that this is simply a blank check for the shop stewards and the other people in the union to be paid with Federal dollars and do whatever they want to do in the promotion of their political views or their union activities. That is not really what we

think is in the best interests, and I am going to just do a hypothetical before I yield back.

If this bill becomes law, will unions stop to exist? No. Will union

organization, union activity stop? No. Will, in fact, union representatives have to choose between working full time and doing extra

work, or being paid for with union dues to do union work? I think

that is a legitimate question, and I hope as we consider this bill

in its current form, and with any proposed amendments, that we

begin asking the question: Who should pay for union activities;

and, in fairness to the gentleman from Georgia, how we should

make sure that when you have management-labor dispute and activities related to the shop floor, work safety, any of those things,

that in fact it is not unacceptable or uncommon for management

to pay, if you will, for both sides of that discussion.

So I look forward to the gentleman’s testimony. I look forward to

the bill being introduced, and I very much look forward to the opportunity to make sure that it accomplishes both: a value for the

taxpayer and fairness for workers and management’s ability to

work together.

And with that, I thank you, Chairman, for calling this hearing

and yield back.

Mr. ROSS. Thank you, Mr. Chairman.

I now recognize the ranking member of the subcommittee, the

gentleman from Massachusetts, Mr. Lynch, for his opening.

Mr. LYNCH. Thank you, Mr. Chairman, and I would also like to

thank our opening panelist, Representative Gingrey of Georgia,

and thank all of our witnesses today for helping this subcommittee

with its work.

Today’s hearing will examine the use of ‘‘official time’’ by Federal

employees and asks the question of whether those workers and the

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best interests of the American taxpayer are served when a Federal

employee exercises his or her statutory right to receive official

time.

Given that we will also be considering the merits of legislation

H.R. 122 to severely restrict the availability of official time, I believe that many of my colleagues in the majority have already

reached their conclusion.

Notably, this hearing comes on the heels of a series of other subcommittee hearings that have been focused to a point on turning

the finger of blame at our hardworking Federal employees as a primary cause of government overspending and the difficulties in the

economy in which we find ourselves. I am, again, mystified how we

all agree that Wall Street caused this problem, the reckless behavior of rating agencies that stamped AAA on anything that moved,

and yet when the blame for all of this comes around, the finger of

blame falls upon Federal employees, our police, our firefighters, our

teachers. I don’t know how the blame landed on them, but it is apparently the agenda of my friends across the aisle that this is

where the source of the problem lies.

In the name of fiscal responsibility, this subcommittee has chosen to focus its attention on whether or the Federal work force is

overpaid, regardless of the high skill level or educational level and

experience of our Federal employees, which on average, in comparison to their private sector counterparts, are much bettered positioned. We have also examined whether we can achieve cost savings by cutting our Federal work force across the board, regardless

of the exorbitant cost of private contracting that has completely

been ignored and is about four times the size of the basic Federal

work force. And now, the subcommittee is keeping its attention on

Federal workers by targeting the use of official time, regardless of

the essential role that official time plays when it comes to an agency’s cost savings, efficiency, productivity, and safety.

Under the Civil Service Reform Act of 1978, the Federal employees represented by a union may be granted ‘‘official time’’ to perform certain representational activities during work hours that

serve the joint interests of both labor and management. In particular, Federal law provides that the amount of time that may be

used is limited to that which both labor and management agree is

reasonable, necessary, and in the public interest. So we have to

have an agreement right now between labor and management that

the time awarded is reasonable. That is the law. That is what is

going on right now.

In other words, while the Federal employees may request official

time, Federal managers and supervisors retain exclusive approval

authority over these requests. But that is not good enough. That

is not good enough for some of my friends on the other side of the

aisle. They don’t want that. They want it to be just cut out altogether. This is absurd. Give me a break.

Accordingly, permissible official time activities may include employee participation in labor-management meetings that seek to

identify ways to improve agency productivity, workplace safety, or

employee training. In addition, Federal employees on official time

may also work to enforce employee protections against unfair discrimination and employment. Hello?

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Let me also say what official time is not. Under Federal law, official time may not be used for solicitation of union membership. It

may not be used for the purpose of conducting union meetings or

elections, and it may not be used to conduct any partisan political

activities.

I am a former union steward, a former union executive board

member, a former union president. Mr. Chairman, in contrast to

the assertions that have been made regarding the misuse of official

time by Federal workers, I would point out that official time has

enjoyed a longstanding bipartisan support as a necessary and effective tool by which management and labor can work together to improve agency efficiency, productivity, and safety.

Safety. We have a lot employees out there that work in a difficult

and hazardous environment, and this is important to them coming

home every day, safely, and in a healthy fashion to their families.

I look forward to hearing from our witnesses. I see my time is

about to expire, and I yield back and I thank the gentleman for his

courtesy.

Mr. ROSS. Thank you, Mr. Lynch.

[The prepared statement of Hon. Stephen F. Lynch follows:]

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Mr. ROSS. Members may have 7 days to submit opening statements and extraneous material for the record.

We will now welcome our first panel, Congressman Phil Gingrey

from Georgia. You are recognized. Thank you.

STATEMENT OF HON. PHIL GINGREY, A REPRESENTATIVE IN

CONGRESS FROM THE STATE OF GEORGIA

Mr. GINGREY. Mr. Chairman, thank you. Chairman Issa, thank

you. Ranking Member Lynch, Member Cummings, and other members of the Subcommittee on Federal Workforce, U.S. Postal Service and Labor Policy, I appreciate the opportunity to testify on an

important issue facing the Federal work force.

It has already been mentioned in your opening statements in regard to opposition to legislation that I have proffered, H.R. 122,

that in some way this takes away rights of the Federal worker in

regard to collective bargaining. I think it was referenced, some of

the things that are going on in various States, Wisconsin in particular. But I want to make it very clear in starting my opening

statement that this bill that I have proffered, H.R. 122 which you

will consider, in no way, shape, or form takes away any Federal

employee’s rights to collective bargaining, indeed to representational activity on behalf of those union members who are designated to arbitrate and file grievances on their behalf.

The question is, basically, Who pays for that? And under current

law and since 33 years ago when the Civil Service Reform Act was

passed in 1978 and signed into law by President Jimmy Carter, the

issue basically stated that official time could include whatever is

reasonable in the public interest. Well, that is not very definitive,

and over the 33 years since the passage of that law, the use, in my

opinion, of official time has been abused, quite frankly, and those

who pay for official time are we, the taxpayer, not you, the union

member, and I don’t think that is right.

The ranking member mentioned that in some way this bill is

placing the blame on the Federal work force for the cause of the

debt and the deficit, and putting the burden on the backs of our

hardworking Federal employees. My bill really does nothing of the

kind, and as you peruse it and hopefully mark it up, maybe even

change it a bit, I think you will come to that same conclusion.

Again, when the law was passed, the Civil Service Reform Act,

in 1978, there was no requirement for any report on the total

amount, the total number of hours, the total expenses of official

time. In fact, in the past 33 years, only nine times have reports

been issued; although in 2002, the then-director of the Office of

Personnel Management put out a directive to all agencies of the

Federal Government: In the interest of full disclosure to the taxpayer, you will issue a report and put it—file it on your Web site

in a timely fashion.

During those 4 or 5 years from 2002 to 2007, what we found was

the total number of hours used in official time hours on filing grievances, collective bargaining, walking around, whatever that is, on

the behalf of the union representational activity, have increased

the total number of hours and the total amount of expense to, we,

the taxpayer; over $100 million, by the way. And that is not nickels

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and dimes, members of the subcommittee, and I think you would

agree with that.

And I think it is a responsibility of us, and particularly your

committee and certainly particularly your subcommittee, Chairman

Ross, to take a close, hard look at this with a sharp pencil, make

sure that no rights are taken away from Federal employees. And

again, as I say, my bill does not do that.

It comes down to the question of who is going to pay for it. And

today who pays for it are the taxpayers, not the union dues. Union

dues are used for other things: political activity, signing up new

members, lobbying on behalf of specific issues either for or against.

Indeed, when we offered this as an amendment to the CR just,

what, not even a month ago, I received as a Member an e-mail

from an employee of the Environmental Protection Agency urging

me as a Member not to support this amendment. And you know,

that was at 2:30 in the afternoon that I received that e-mail. I don’t

know whether this employee was a designated representative of the

union for that particular division of the EPA. But whether they

were officially the representative or just an employee for the EPA,

during that period of time at 2:30 in the afternoon, they were supposed to be working, doing EPA work, very important work for, we,

the taxpayer; yet they were lobbying Members of Congress to vote

against this bill, and that is totally disallowed in the Civil Service

Reform Act of 1978.

So, you know, we clearly have a problem. Obviously, in the 5

minutes—and I appreciate your patience with me, Mr. Chairman

because, I know I have gone over a little bit, but I have submitted

my entire report to the committee for the official record. But I just

think that the responsible thing for Members on both sides of the

aisle is to address this issue.

If my bill is not perfect—and I feel pretty confident that it is not

perfect—you go over it with a sharpened pencil and a fine-toothed

comb and make sure that we get it right, because hundreds of millions of dollars a year—and since the reporting has not been done

in a timely manner, in fact, not done at all in a couple of the last

3 or 4 years—the amount of time spent on official time by people

making $30, $40 an hour, not working at all for the taxpayer, has

actually gone up and the cost has gone up.

So, with that, Mr. Chairman and members of the committee,

once again I want to thank you for giving me the opportunity to

testify.

Mr. ROSS. Thank you, Mr. Gingrey, and we appreciate you being

here.

[The prepared statement of Hon. Phil Gingrey follows:]

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Mr. ROSS. With that, we will take a short recess to prepare for

the next panel. Thank you.

[Brief recess.]

Mr. ROSS. Our first witness is Mr. Timothy Curry. He is the deputy associate director for Partnership and Labor Relations at the

Office of Personnel Management.

We have Mr. Vincent Vernuccio who is the labor policy counsel

at Competitive Enterprises Institute.

Next, we have Mr. James Sherk, who is a senior policy analyst

in labor economics at The Heritage Foundation.

And then we have Mr. John Gage who is the national president

of the American Federation of Government Employees.

I thank you all for being here. Pursuant to the committee rules.

All witnesses must be sworn in before they testify. If you wouldn’t

mind, please stand and raise your right hands.

[Witnesses sworn.]

Mr. ROSS. Thank you. Let the record reflect that all witnesses

have answered in the affirmative.

Please be seated. In order to allow time for discussion and questions, please limit your testimony to 5 minutes, and with that, I

will recognize Mr. Curry for an opening statement.

STATEMENTS OF TIMOTHY F. CURRY, DEPUTY ASSOCIATE DIRECTOR, PARTNERSHIP AND LABOR RELATIONS, U.S. OFFICE OF PERSONNEL MANAGEMENT; F. VINCENT

VERNUCCIO, LABOR POLICY COUNSEL, COMPETITIVE ENTERPRISE INSTITUTE; JAMES SHERK, SENIOR POLICY ANALYST IN LABOR ECONOMICS, THE HERITAGE FOUNDATION;

AND JOHN GAGE, NATIONAL PRESIDENT, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

STATEMENT OF TIMOTHY F. CURRY

Mr. CURRY. Chairman Ross, Ranking Member Lynch, and members of the subcommittee, thank you for the opportunity to testify

before you today about the use of official time in the Federal civil

service.

As President Barack Obama stated in Executive Order 13522,

‘‘Federal employees and their union representatives are an essential source of front-line ideas and information about the realities of

delivering Government services to the American people.’’ The Office

of Personnel Management and the administration believe that collective bargaining in the Federal sector provides an efficient, structured framework for engaging employees and giving them a voice

in workplace matters.

Official time is a critical component of the carefully crafted collective bargaining system that Congress created for the Federal

Government. Union membership in the Federal sector is a choice,

but Federal employee unions are required by law to represent all

employees in the bargaining unit, even those who choose not to become dues-paying union members. Official time is essential to the

unions’ ability to meet this statutory obligation.

Labor and management need to be accountable for ensuring that

official time is used appropriately and not abused. To assist them,

OPM has voluntarily produced reports on official time usage since

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2002 with its latest report covering fiscal year 2009. The first report on official time prepared by OPM was published in 1998 when

OPM was directed to prepare a report for the House Committee on

Appropriations. Subsequently, OPM began preparing reports on official time usage on its own initiative since fiscal year 2002, and

most recently, for the period covering fiscal year 2009.

We continue to refine our methods for official time data collection. Prior to the fiscal year 2009 report, OPM collected the data

from agencies manually. Fiscal year 2009 was the first time OPM

relied upon agency official time usage data extracted from the Enterprise Human Resources Integration System, where possible. The

report covering fiscal year 2009 was released a few weeks ago on

May 17, 2011.

An agency’s official time wage cost is determined by multiplying

the reported official time hours by each agency’s average bargaining unit employee hourly wage plus fringe benefits. During fiscal year 2009, there were 1,159,396 non-postal Federal civil service

bargaining unit employees represented by labor unions. Agencies

reported that bargaining unit employees spent a total of 2,991,378

hours performing representational duties on official time. The number of official time hours used per bargaining unit employee on representational matters during fiscal year 2009, on average across

the government, was 2.58 hours.

In comparing fiscal year 2008 and fiscal year 2009 data, the cost

of official time hours increased by 6.93 percent; however, official

time costs represented less than two-tenths of 1 percent, or

0.0013197 percent to be exact, of the civilian personnel budget for

Federal civil service bargaining unit employees.

We have just initiated efforts to develop a report for the period

covering fiscal year 2010 and plan to complete the survey later this

year. Additionally, the fiscal year 2009 report is now posted on the

OPM Web site, and OPM staff is currently working to post all past

reports on its Web site in the spirit of transparency.

Thank you for the opportunity to testify, and I am happy to answer any questions you may have.

Mr. ROSS. Thank you, Mr. Curry.

[The prepared statement of Mr. Curry follows:]

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Mr. ROSS. Mr. Vernuccio, you are recognized for 5 minutes.

STATEMENT OF F. VINCENT VERNUCCIO

Mr. VERNUCCIO. Chairman Ross, Ranking Member Lynch, and

members of the committee. Thank you for holding this hearing and

providing me the opportunity to discuss the issue of official time in

the Federal work force. My name is Vincent Vernuccio, and I am

labor policy counsel at the Competitive Enterprise Institute and

editor of workplacechoice.org. CEI is a nonprofit, nonpartisan public policy organization and focuses on regulatory issues from a free

market and limited government perspective. Workplacechoice.org is

a comprehensive, up-to-date Web site for news on labor regulations,

private and government sector unions, pensions and pro-worker

legislation.

Official time is not a good value for the taxpayer and does not

serve the public interest. Title V of the U.S. Code allows Federal

Government employees to perform union duties unrelated to their

jobs, while still being paid their government salary which is ultimately funded by the taxpayer. This process is called official time.

There is no legislative or regulatory requirement for the government to report to taxpayers how much of this time is utilized by

government unions.

In fiscal year 2009, Federal Government employees lodged almost 3 million hours of work for union work while still receiving

a paycheck from the taxpayers. These hours are compensated and

are not volunteer benevolence. Taxpayers should not be forced to

subsidize union activity, and Congress should repeal the section of

Title V that authorizes official time.

However, as long as official time is allowed, taxpayers should

have easy access to detailed information on its usage and its costs.

Congress should require OPM to report official time usage on an

annual basis and publish the findings online.

Official time amounts to a significant and inappropriate government subsidy for union activity, paid for by the taxpayers. Official

time costs taxpayers over $129 million for work of no appreciable

benefit to them. Those figures represent time and money that could

have been spent on the government’s other administrative duties.

This does not include the cost of administrative official time, union

office space in government buildings, or official time travel expenses. It does not take into account the cost of dealing with the

plethora of frivolous complaints stemming from the no cost to the

union, but of much cost to the government’s grievances. These expenses could raise the actual cost of taxpayer union subsidies significantly.

Civil service laws provide many of the protections to Federal

Government employees in areas where the union scope to negotiate

is limited by statute. This makes many traditional representation

functions unnecessary and further decreases the need for official

time. Federal employees do not bargain over wages, benefits, and

many working conditions that are key points of contention for

workers in the private sector and in many States. The act covers

merit system principles, personnel practices, labor management relations, and a myriad of other workplace issues.

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Statute gives Federal employees many of the protections for

which official time is supposedly needed. This renders the value of

official time for activities questionable for both Federal workers

and for taxpayers.

Federal Government unions have hundreds of thousands of members and take in millions of dollars in dues each year. In 2010, the

American Federation of Government Employees’ receipts were over

$103 million; the National Treasury Employees Union exceeded

$39 million; and the National Federation of Federal Employees,

$51⁄2 million. These totals are only for the above unions’ national

headquarters and do not include receipts from locals.

In addition, there are many other unions that represent government employees that have not been mentioned. In some instances,

these unions are not required to represent nonmembers such as in

front of the Merit System Protection Board or U.S. courts. These

unions do have the money to pay for the representation of their

members. It is unfair to force the taxpayer to foot the bill.

If official time is not revoked, however, Congress should enact

legislation to mandate its reporting. In its fiscal year 2009 report,

OPM stated twice: There are no legal or regulatory requirements

to publish any official time data. OPM says it voluntarily chose to

issue the call and guidance for fiscal year 2009. OPM’s acknowledgement that it is not required to publish this report clearly indicates that the agency could discontinue it at its discretion.

The need for the report is actually twofold. First, taxpayers

should be able to know how much of their tax dollars are being

used to fund official time. Second, requiring reporting of official

time will require Federal employees to hold their agencies accountable if it is continued to be mandated by law.

In conclusion, official time is a bad deal for taxpayers. Congress

should repeal its usage and end the public subsidy of union activity. I applaud Congressman Gingrey for his bill, H.R. 122; and,

short of that, it should also legislate OPM to report official time

usage on an annual basis. And Congressman Ross, I applaud you

for your potential bill.

Thank you, and I would like to take this opportunity to thank

the subcommittee, and I would welcome any questions.

Mr. ROSS. Thank you, Mr. Vernuccio.

[The prepared statement of Mr. Vernuccio follows:]

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Mr. ROSS. Mr. Sherk, you are recognized for 5 minutes.

STATEMENT OF JAMES SHERK

Mr. SHERK. Chairman Ross, Ranking Member Lynch and members of the subcommittee, thank you for inviting me to testify.

My name is James Sherk. I am a senior policy analyst in labor

economics at The Heritage Foundation. However, the views I

present in this testimony are my own, and it should not be construed as representing an official position of The Heritage Foundation.

This afternoon, I want to explain to you why paying government

employees to do union work does not provide good value for the

taxpayer. Congress should be aware of three significant problems

with this official time.

The first problem with official time is that it subsidizes Federal

unions attending to private business. Unions exist to represent

their members. Their core mission is to negotiate collective bargaining agreements and represent workers with grievances. Union

members pay dues so that unions can provide these services. With

unofficial time, unions would hire full-time employees to perform

these union duties. Instead, the taxpayers pay for it. Official time

requires taxpayers to cover the cost of union representation. Many

Federal employees actually spend all their time at work on union

business. This cost taxpayers $129 million in 2009.

Now, unions, of course, enjoy the subsidy, but it does not provide

good value for the taxpayer. While unions do use some official time

on matters of public interest, such as discussions with management

on how to improve productivity or workplace safety, they spend

large amounts of official time on matters of no public concern. Federal unions bargain such issues such as how to assign parking

spaces or how to implement telecommuting policies. These issues

matter only to Federal employees. The public should not bear the

union’s cost of negotiating them.

If Federal employees believe that union representation improves

their working conditions, then they should pay for that representation themselves. Taxpayers should not pay government employees

to do union work.

A second problem with official time is that it encourages unions

to file frivolous grievances. With official time, it is taxpayers, not

the union, who pay for the cost of union representation and grievance proceedings. This subsidizes filing frivolous complaints that

unions would not spend their own money pursuing. Several recent

cases demonstrate the frivolous charges that unions do, in fact,

bring.

For example, at Randolph Air Force Base, the American Federation of Government Employees local asked to renegotiate its collective bargaining agreement. However, the local did not offer any

proposals to management to bargain over. After 4 months without

the union stating what they wanted to discuss, the Air Force terminated negotiations. The union then filed a grievance against the

Air Force. For? Refusing to bargain with them.

In another case, in a Federal prison in West Virginia, the collective bargaining agreement expressly prohibited wearing jeans at

work. The union president nonetheless repeatedly wore jeans, deVerDate 17-JUN-2003 15:00 Oct 28, 2011 Jkt 000000 PO 00000 Frm 00049 Fmt 6633 Sfmt 6633 C:\KATIES\DOCS\70524.TXT KATIE PsN: KATIE
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spite being reminded of this policy. The union president also used

the prison e-mail system to e-mail employees about purely union

matters. The warden told the union president to change out of the

jeans and to stop using the work e-mail system for union matters.

In response, the union filed unfair labor practice charges.

Now, these complaints were baseless, and the Federal Labor Relations Authority rejected them. But before that happened, taxpayers paid for counsel representing the government, a Federal

labor arbitrator, and a court reporter. Each grievance cost the taxpayers tens of thousands of dollars.

Requiring unions to pay for grievance representatives out of

union dues would discourage bringing meritless charges. Unions

would be far more circumspect if grieving cost them money, not the

taxpayers, and reducing the number of frivolous grievances could

save the government millions of dollars.

The third problem with official time is that it subsidizes government unions’ political agendas. Federal employees may lobby Congress while on official time if they are lobbying over Federal working conditions. Union officials can and do lobby Congress for more

generous benefits while being paid by taxpayers to perform public

service.

Official time also permits Federal unions to spend more on politics. With unofficial time, unions themselves would pay union representatives to negotiate collective bargaining agreements and represent their workers in grievance proceedings. Because the taxpayers cover those costs of the core mission, the unions have more

money to spend elsewhere, such as on politics and lobbying, and

Federal unions do spend considerable sums on politics.

In 2010, the American Federation of Government Employees na- tional headquarters spent $4.1 million in politics and lobbying. The

National Treasury Employees Union spent $1.8 million on these

same activities. Federal unions could not spend this much if they

had to use their own members on the core mission of representing

their members.

Unions now, of course, have every right to lobby for their preferred policies and campaign for their preferred candidates. The

taxpayers, however, should not have to subsidize this. Many Americans do not want Federal pay to rise and oppose the political candidates that Federal unions support.Taxes collected from every

American should not subsidize Federal unions’ political agendas.

Congress can correct these problems by sharply restricting the

use of official time.

Thank you. I appreciate the opportunity to explain the problems

with official time and why it does not provide good value for the

taxpayer.

Mr. ROSS. Thank you, Mr. Sherk.

[The prepared statement of Mr. Sherk follows:]

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Mr. ROSS. Mr. Gage, you are recognized for 5 minutes.

STATEMENT OF JOHN GAGE

Mr. GAGE. Thank you, Mr. Chairman, Ranking Member Lynch

and members of the subcommittee. On behalf of the 650,000 Federal employees represented by AFGE, thank you for inviting me to

testify today on official time for volunteer Federal employee representatives.

In January 1962, President Kennedy signed Executive Order

10988 which gave Federal workers for the first time the right to

unionize and collective bargain with their agencies. Seven years

later, President Nixon issued Executive Order 11491 which reaffirmed and expanded those rights. Those orders and the statute

which succeeded them, the Civil Service Reform Act of 1978, required Federal employee unions to provide representation for all

employees in their collective bargaining units, even those who

choose not to pay dues. Under this open shop arrangement, Federal

unions are also forbidden from collecting any fair-share fees from

nonmembers for the services which the union must provide.

In exchange for the legal obligation to provide the same services

to those who pay as well as those who choose not to pay, the executive orders and the CSRA allowed Federal unions to bargain with

agencies over official time. Depending on the contract, Federal employees who serve as volunteer employee representatives may use

reasonable amounts of approved official time to engage in representational activity while in duty status:legally permitted representational activities, including creating fair merit-based promotion procedures; establishing flexible work hours and telework opportunities; setting procedures that protect employees from on-the-job hazards; and forcing protections from unlawful discrimination; participating in work improvement processes, and providing workers with

a voice in determining their working conditions.

The Civil Service Reform Act provides that the amount of official

time for these representational responsibilities is limited to that

which the union and the agency agree is reasonable, necessary, and

in the public interest. The amount of time must be negotiated by

the two parties. It is not a blank check for the union.

In addition, the statute clearly states that the activities performed by an employee related to the internal business of the

union must be performed while in a nonduty status. Such activities

include solicitation of membership, internal union meetings, election of officers, and partisan political activities. I want to emphasize, Mr. Chairman, that official time may not be used for the activities I just mentioned.

Finally, Federal employees may file appeals of personnel actions

outside the scope of the unions’ negotiated contract. Such appeals

may be through an agency’s internal administrative grievance procedures or EEO programs: to MSPB for adverse personnel actions

such as suspensions, removal, and reduction in force; to DOL and/

or the MSPB for violations of veteran preference rules; to DOL for

workers compensation; and to OPM for Fair Labor Standard Act

violations. These statutes themselves provide a reasonable amount

of time to employees and their representatives, union or not, in

order to file such appeals.

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Through official time, employee representatives work together

with Federal managers to make our government better. Gains in

quality, productivity, and efficiency simply would not have been

possible without the reasonable and sound use of official time. Private industry has known for years that a healthy and effective

labor-management relationship improves customer service and is

often the key to survival in a competitive market.

The same is true in the Federal Government. No effort to improve governmental performance, whether it is called reinvention,

restructuring, or reorganizing, will thrive in the long haul if labor

and management maintain an arms-length adversarial relationship.

In an era of severe budget cutting, it is essential for management

and labor to develop a stable and productive working relationship.

If workers and management are really communicating, workplace

problems that would otherwise escalate into costly litigation can be

dealt with promptly and more informally.

Employee representatives use official time for joint labor-management activities that address operational, mission-enabling

issues in the agencies. Such activities are designing and delivering

joint training of employees on work-related subjects, introducing

new programs and work methods that are initiated by the agency

or suggested by the union. As examples, such changes may be technical training of health care providers in the VA or introduction of

data-driven food inspection at the Department of Agriculture.

Employee representatives use official time for routine and unusual problem solving of emergent and chronic workplace issues,

particularly in health and safety programs which emphasize effective systems to prevent workplace injuries and illnesses.

Official time is also used by employee representatives participating in programs such as LEAN and Six Sigma, labor-management collaborative efforts, which focus on improving quality of

products and procedural efficiencies. Currently, DOD employee representatives are participating on official time to develop new performance management and accelerated hiring systems.

To ensure its continued reasonable and judicious use, all Federal

agencies track basic information on official time and submit it annually to OPM, which then compiles a governmentwide report.

From fiscal year 2008–2009, total official time hours governmentwide have increased 3.37 percent, but the total number of hours expended per bargaining unit employee fell from 2.6 to 2.58.

Mr. ROSS. Mr. Gage, if I could get you to wrap it up.

Mr. GAGE. In conclusion, Mr. Chairman, AFGE strongly opposes

any proposals to erode the contractual and statutory rights of employee representatives to use official time to represent both duespaying and non-dues-paying members of collective bargaining

units. Official time is a longstanding, necessary tool that gives

agencies and their employees the means to expeditiously and effectively utilize employee input into mission-related challenges of the

agency, as well as to bring closure to conflicts that arise in all

workplaces. It has enjoyed bipartisan support for almost 50 years.

Thank you, Mr. Chairman.

Mr. ROSS. Thank you, Mr. Gage.

[The prepared statement of Mr. Gage follows:]

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Mr. ROSS. And I will recognize myself now for 5 minutes for

questions.

Mr. Curry, the question I have to ask you is since 2002 there has

been an annual report up through 2009 from OPM as to official

time, but for some reason inexplicable to me is there has been a

20-month delay. Can you explain why there has been a 20-month

delay in rendering the report?

Mr. CURRY. I would be happy to answer the question, Mr. Chairman.

I arrived at OPM in August 2010, and as I began assessing the

programs I had responsibility for, I determined that the official

time report for 2009 had not been accomplished yet. There is a variety of reasons why that would be. There was a reorganization at

OPM, there was a turnover in the staff in my office. Ultimately,

that had some impact on starting the report.

We also decided to take a different approach. I directed my staff

in mid- to late September to begin compiling the data for the report, and as I noted in my opening remarks, instead of manually

collecting the data we decided to take a different approach and extract the data from a data system and then ask agencies to validate the data.

Mr. ROSS. So the recent report you would say is accurate—is at

least as accurate as the ones previously submitted?

Mr. CURRY. Yes, sir.

Mr. ROSS. And with regard to a report on 2010, is that in the

works?

Mr. CURRY. We are in the process of starting to gather that data

and expect to have that finished by September.

Mr. ROSS. Thank you.

Mr. CURRY. Yes, sir.

Mr. ROSS. Now, I also understand that there are some Federal

employees that 100 percent of the time is on official time; is that

correct?

Mr. CURRY. Yes, that is correct.

Mr. ROSS. And how many employees would you say that is?

Mr. CURRY. We do not track that data. Those reports don’t reflect

that, but the hours for those employees on 100 percent official time

would be reflected in the total ADC hours that are reported to us.

Mr. ROSS. And if you are on 100 percent official time, do you

then get—are you eligible for and receive pay increases, annual pay

increases?

Mr. CURRY. I could—you are not eligible for a performance rating

because you are not performing agency assigned work. So therefore

you are not eligible to receive a performance award or a quality

step increase based on performance. You are eligible for the annual

pay adjustments as well as within-grade step increases.

Mr. ROSS. So—OK. If Federal employees are on official time, can

they lobby Congress?

Mr. CURRY. There is no statutory right to official time to lobby

Congress. However, as part of the contractual right to negotiate on

official time, it is negotiable for a union to propose to receive official time to lobby Congress on workplace-related matters.

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Mr. ROSS. So would it be fair to say, then, that those times that

are reported as official time lobbying Congress are done in pursuance to a contract based on collective bargaining?

Mr. CURRY. Yes, sir.

Mr. ROSS. As opposed to being statutorily authorized?

Mr. ROSS. Correct.

Mr. ROSS. Let me ask you about the location. Do any of the employees do official time off location; in other words, off their work

status?

Mr. CURRY. I don’t have that information.

Mr. ROSS. Would you have any idea?

Mr. CURRY. I would not know that answer, sir.

Mr. ROSS. Given that most employees cannot collectively bargain

over pay and benefits, can you discuss in detail the sorts of activities labor union representatives negotiate when on official time?

Mr. CURRY. Certainly. I can give you different examples. One big

example would be negotiating over merit promotion procedures

where unions could negotiate procedures for fair and honest competition for bargaining employees for competing for Federal jobs.

You could see contract provisions dealing with safety requirements

for workplace matters as far as to ensure that procedures are set

in place to ensure that it’s the safest environment for employees.

You could see procedures for negotiating how overtime work assignments are made. So there are different workplace matters that

they do negotiate on, how you accomplish things.

Mr. ROSS. I am going to be filing a bill that would require OPM

to produce this report annually at the end of March. Do you think

OPM would object to that?

Mr. CURRY. We would not have any position on the bill at this

time, sir.

Mr. ROSS. Mr. Vernuccio, with regard to private sector unions, is

there any tracking or data available as to how much union time is

spent by private sector employees on private sector payrolls?

Mr. VERNUCCIO. The main report for private sector unions and

some Federal unions is the LM2 which is available on the Department of Labor’s union reports DOT gov. I am not sure if there is

any line on there that tracks in the collective bargaining agreement

how much is actually spent on the private sector version of official

time. There are some private sector collective bargaining agreements that do have—do have the equivalent of paid shop stewards.

Mr. ROSS. Mr. Sherk, are you familiar with how that relates between private sector unions and public sector unions and official

time?

Mr. SHERK. The GAO took a look at this back in 1996 through

1998 when there were a lot of investigations of this, and their finding was about—they examined a number of collective bargaining

agreements. About half of private sector companies permit some

form of official time, and half do not. So it’s about an even split in

the private sector between allowing it and not.

Mr. ROSS. I see my time is up. So I will recognize the ranking

member, Mr. Lynch, for 5 minutes.

Mr. LYNCH. Thank you, Mr. Chairman, and I want to thank our

witnesses.

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Let me try to give a concrete example. I was elected on September 11, 2001, in the Democratic party in Massachusetts. When

I came to Congress a few weeks later, there was anthrax in some

of the Federal buildings, including the Brentwood postal facility not

far from here, and tragically, two of my postal clerks, Thomas Morris, Jr., and Joseph Curseen, Jr., died of anthrax inhalation. Now,

because there was anthrax in a number of facilities in New York

as well, there was a lot of involvement by the union representatives. There was anthrax. It was difficult to detect. It had killed

two workers and injured some others. So we used a lot of official

time. They used official time to protect the other workers.

There was actually a moment during that period when, because

of the attacks of 9/11 and the anthrax attacks which were right on

the heels of those attacks, the union representatives were very concerned about sending their workers back into these post offices because the anthrax had been detected. And so workers were going

to work, they were contaminated with the anthrax, and then they

were going home to their families. So a lot of the union stewards

and union presidents were very concerned about sending their

workers back into those facilities.

So the postal unions were faced with a dilemma. They could not

go to work, and the mail would not go through to every home and

business in America 6 days a week. It would have, I think, caused

great damage at that moment after the 9/11 attacks to have commerce stop. So a lot of those union representatives came up to the

Hill to talk to Congress, and a lot of them spent official time on

that issue, especially because of the deaths of those two workers.

Now, at the end of the day, I think they made a very courageous

decision. They said, we are going to go to work, and I have two sisters that work at the post office, and I know—and they both had

young kids at the time. They were very concerned about contaminating themselves and their kids. They made a decision that they

would go to work, and I think, you know, we have never really

thanked the postal workers, you know, the clerks, the mail handlers, the letter carriers, the supervisors, the postmasters, for the

work that they did during that very critical time and the courage

that they showed in a very difficult time. They did the patriotic

thing; they went to work.

But they also used those rights that you are trying to limit here

today or speaking against, some of you, and you know, that not

only protected American workers in the workplace, but it also protected the public and it protected, you know, families and kids.

And, you know, sometimes I think some legislation here is actually a problem in—well, a solution in search of a problem, I guess,

what I would call this H.R. 122. I have talked to a lot of the Federal manager groups. This issue never comes up. We are in a mess

here in Washington, the debt limit, the budget. We have problems.

We are in three wars. I talk to these managers all the time, Federal managers, because I am a member of this committee, ranking

Democrat. This issue never comes up, never. And here we are, we

are having a full-blown hearing, and this now apparently is the

issue d’jour. It is another way to get back at the unions, get back

at workers, to try, you know, try to exercise their rights.

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These workers don’t even have the right to strike. They have

very few rights, these workers. They are allowed to complain, but,

by God, they better keep on working. They don’t even have the

right to strike. We have stripped that away from them because we

have said your public service is so important, and this is the way

we treat them.

I think it is disgraceful, I really do. I think we ought to treat our

workers better, especially Federal workers. We want good people

who want to come to work in the service of their government. We

have to stop trashing them. We have to start thinking about how

we might make these jobs have a little bit more dignity, treat them

with a little bit more dignity, what they have earned; and you

know, like those postal workers who went to work in spite of the

anthrax, and you know, the two workers who died in the performance of their duty, and I don’t even want to mention the 335 firefighters that went up the stairs on 9/11 or the 72 police officers or

the EMS workers who went up the stairs on 9/11 at the north and

south towers of the World Trade Center when everybody else was

going out. You forget the fact that every single one of those firefighters, those EMS workers, and those police officers, every single

one of them had a union card in their pocket. Every single one of

them, and this is how we repay them.

I have extended my time, and I appreciate the courtesy, Mr.

Chairman. I yield back.

Mr. ROSS. Thank you, Mr. Lynch. I recognize the gentleman from

South Carolina, Mr. Gowdy, for 5 minutes.

Mr. GOWDY. Thank you, Mr. Chairman, and I thank you for your

leadership on this subcommittee on this issue and so many others.

Mr. Curry, are there certain categories of Federal employees

whoare not able to unionize?

Mr. CURRY. Yes, sir, Mr. Congressman. The labor statute does

exclude certain categories of employees from unionizing. You might

have employees that might be involved in intelligence, for example.

Managers can’t organize. Certain other categories would include

like labor relations professionals such as myself.

Mr. GOWDY. How about Bureau agents?

Mr. CURRY. FBI? They are excluded by law from being covered

under the labor relations statute.

Mr. GOWDY. Well, I can’t think of a category of employees who

would be more interested in workplace safety than Bureau agents.

So who advocates on their behalf?

Mr. CURRY. I don’t have an answer for that, Congressman.

Mr. GOWDY. Well, they are not unionized so nobody’s taking official time, correct?

Mr. CURRY. That would be my estimation, yes.

Mr. GOWDY. Do you agree with me that no category of Federal

employees would have more cause for concern for workplace safety

than FBI agents, and yet no one is being paid to advocate on their

behalf. Agreed?

Mr. CURRY. Sir, I would certainly say that all employees would

want someone to advocate for them. I don’t know how they do it

at the FBI.

Mr. GOWDY. What about the Drug Enforcement Agency; would

you agree with me that they are not able to unionize?

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Mr. CURRY. I believe that is correct, but I don’t know for certain,

sir.

Mr. GOWDY. What about ATF agents?

Mr. CURRY. Again, I don’t know for certain, sir.

Mr. GOWDY. Secret Service agents?

Mr. CURRY. I believe they are not organized.

Mr. GOWDY. ICE?

Mr. CURRY. Actually they are organized.

Mr. GOWDY. Immigrations and Customs are unionized?

Mr. CURRY. Yes, sir.

Mr. GOWDY. So what about Federal prosecutors?

Mr. CURRY. I don’t have an answer for that. I don’t believe they

are, but I don’t have that information, sir.

Mr. GOWDY. So you can advocate, you can lobby Congress, you

can advocate for workplace safety, you can do all of that outside a

union and on your own time?

Mr. CURRY. Well, I mean ultimately, sir, I would think that when

employees organize, it is basically a labor union providing a collective voice for the work force. I think that is ultimately the idea,

with labor organizations and collective bargaining being found to

be in the public interest.

Mr. GOWDY. I am going to try my question again. Bureau agents,

ATF agents, DEA agents, Federal prosecutors, all are concerned

with workplace safety, including their own lives. They can’t

unionize, but yet they can still advocate on their behalf; correct?

Mr. CURRY. I assume so, sir, but other law enforcement organizations do have labor unions as far as police officers. They are organized in the Federal Government.

Mr. GOWDY. Well, I thought we were primarily talking about

Federal employees today.

Mr. CURRY. Well, we do have Federal police officers.

Mr. GOWDY. Can you tell me your—do you agree, rather, the

phrase ‘‘reasonable and necessary in the public interest,’’ that

seems somewhat vague and overly broad; do you agree or disagree?

Mr. CURRY. It is open to interpretation, sir.

Mr. GOWDY. How do you interpret it?

Mr. CURRY. Well, ultimately, since that is a contractual form of

official time, that’s where the parties—where there is a collective

bargaining relationship, labor and management, they have to have

a meeting of the minds on what they agree to be reasonable and

necessary and in the public interest as it relates to their organization, their mission, and the circumstances of what’s happening in

that organization.

Mr. GOWDY. My colleague from Florida asked a question and I

want to followup, whether or not there are Federal employees who

are on 100 percent official time.

Mr. CURRY. Yes, there are, sir.

Mr. GOWDY. Can you give me a rough estimate of how many Federal employees are on 100 percent official time?

Mr. CURRY. We do not track how many employees are on official

time, but the hours for that official time would be included, the

total hours reported by each agency.

Mr. GOWDY. Where could curious folks go to find the answer to

that question?

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Mr. CURRY. We would have to ask the agencies to identify that

information to us.

Mr. GOWDY. How troublesome is that?

Mr. CURRY. We have actually posed that question. It is a—it is

a lengthy process. They have to go out and gather that information

for us.

Mr. GOWDY. Thank you, Mr. Chairman. I would yield back the

remainder of my time.

Mr. ROSS. Thank you. They called us for votes. We will try to get

some of these in right now, and I will recognize the ranking member of the full committee from Maryland, Mr. Cummings.

Mr. CUMMINGS. Thank you very much, Mr. Chairman.

Mr. Gage, as members of this committee know firsthand from our

hearing in April with Wisconsin Governor Scott Walker, there is an

effort in States controlled by Republican Governors to diminish or

totally eliminate public sector unions. As we also know from Governor Scott Walker’s testimony, he admitted that there was no

budget savings basis for his effort to rescind collective bargaining

for public sector workers. While he used the State’s budget problems as a pretense to roll back collective bargaining, there was not

a valid reason for doing so and the State would reap no budget savings by doing so. I wonder if we don’t see the same thing here

today at this hearing.

Mr. Gage, in your opinion does the Gingrey bill share in common

any resemblance to the legislative efforts in the Republican-controlled States to curtail public sector collective bargaining?

Mr. GAGE. Well, Congressman, I am trying to be positive with

this hearing, thinking it’s an honest look at something that clearly

is within Congress’ purview; but when you take away official time,

the way collective bargaining is set up in the Federal sector, you

take away collective bargaining. You can’t have a contract without

enforcing it, and the official time from our volunteer reps, that is

how contracts are enforced. You take that away, and it’s—and the

contract becomes meaningless.

But you know, this is not the first time we have discussed this,

and these agencies just didn’t fall off a turnip truck. They take

strict accounting. All official time is approved. It’s on an issue-byissue basis, and those who are on official time 100 percent, they are

running big unions.

For instance, the Bureau of Prisons, our Council there, the Council president is on 100 percent time, but he is working, usually in

management’s lap, almost every day. Same with our president of

our VA Council which has 90,000 members in VA’s hospitals all

over the country. She is on 100 percent but works closely, day-byday with management, and it’s just a more efficient way of doing

things.

Mr. CUMMINGS. Let me give Mr. Vernuccio a say here because we

don’t have much time. Mr. Vernuccio.

Mr. VERNUCCIO. Vernuccio, yes.

Mr. CUMMINGS. As you know, Governor Scott Walker of Wisconsin kind of boasted his anti-union political intentions to a person who was calling for a status report while posing as one of the

Koch brothers. Governor Walker received a great deal of support

from the Koch brothers in his political campaign, and I’m wonVerDate 17-JUN-2003 15:00 Oct 28, 2011 Jkt 000000 PO 00000 Frm 00073 Fmt 6633 Sfmt 6633 C:\KATIES\DOCS\70524.TXT KATIE PsN: KATIE
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dering if the Koch brothers have backed you or your organization

as well. And have you or the Committee Enterprise Institute received money from the Koch brothers or any organization supported financially by them?

Mr. VERNUCCIO. Congressman, for my project at the Institute, I

can say with 100 percent certainty, no, we have not received any

Koch money. Our money comes from small donations through direct mail, primarily from across the country. For the larger Institute, I am almost positive we have not received any money from

the Koch Foundation, but I cannot be 100 percent sure.

Mr. CUMMINGS. And Mr. Sherk, the same question for you. Have

you or the Koch brothers funded your organization as well? Do you

know?

Mr. SHERK. I believe they gave a relatively small amount. It is

less than 1 percent of our budget.

Mr. CUMMINGS. What is your budget?

Mr. SHERK. I’d have to look at our annual report. I don’t know

that.

Mr. CUMMINGS. Well, let me inform y’all what I know. It might

interest you that—and members of the committee—to know that

the Koch brothers have been substantial, substantial funders of

both your organizations. According to publicly available information, Mr. Sherk, your organization received over $1 million from

the Koch brothers, and yours, Mr. Vernuccio, received over

$350,000.

And so will each of you provide this committee with details of the

funding, support your organization has received from the Koch

brothers in each of the past 5 years so that we can be clear on this?

Would you do that for us.

Mr. VERNUCCIO. Yes.

Mr. CUMMINGS. Thank you very much. Would you do that for us,

Mr. Sherk?

Mr. SHERK. I believe it’s publicly available——

Mr. CUMMINGS. No, I want it from you, since you just testified

that it’s a small portion; less than 1 percent, I think you said. I

don’t want to put words in your mouth.

Mr. Vernuccio, you support the Gingrey bill, and I wonder if you

or the Competitive Enterprise Institute has prepared any testimony or analysis for any effort in any State to curtail collective

bargaining of public sector workers there, any other testimony, yes?

Mr. VERNUCCIO. We are preparing studies on pro-worker legislation and pro-worker movements across the States.

Mr. CUMMINGS. So the answer is yes or no?

Mr. VERNUCCIO. The answer is on our Web site. Yes, we do have

pro-worker bills.

Mr. CUMMINGS. I see my time has expired. Thank you, Mr.

Chairman.

Mr. ROSS. Thank you. I recognize the delegate from the District

of Columbia, Ms. Norton, for 5 minutes.

Ms. NORTON. Thank you, Mr. Chairman.

Mr. Chairman, there is a difference between learning how Congress spends and not wanting funds to be spent at all.

Just let me indicate my sadness at having witnesses come before

us today, testifying in a way that can leave no doubt that they do

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not believe in the right to collectively bargain at all. I commend to

you the history of authoritarian government. You know, there are

four or five things that they oppose: freedom of speech, freedom of

religion, and the right to organize.

The right to organize and join a union means the right to operate

that union. So let’s look at the cost, since that is the pretext being

used here.

There is a cost here only if you think that Americans that work

for the Federal Government don’t have the right to organize. Let’s

look at it. They can’t bargain wages, certainly no cost there.

Gentlemen, let me suggest to you that unions subsidize, subsidize the Federal Government through the duties they carry out

as a consequence of achieving the right to organize. For example,

are you aware—I assume you are aware that unions have to organize and carry the grievances of people who pay no union dues and

are not members of the union. Are you aware of that?

Mr. VERNUCCIO. Congressman, in many cases, unions do not

have to represent non-members, especially in front of the Merit

Systems Protection Board, and in front of——

Ms. NORTON. Are you aware that most Federal Government

unions, in fact, carry the—must carry—must bargain for all employees?

Mr. VERNUCCIO. I believe that’s a portion of their exclusive

bargaining——

Ms. NORTON. Mr. Gage, would you answer the question, please?

Mr. GAGE. We have to represent all employees in grievances. If

there is a statutory avenue for an employee and he chooses to go

that way, we don’t have to represent them; but in all grievances

under a contract, we have to represent the member and the nonmember.

Ms. NORTON. That’s Federal law.

Let me ask both of you, who appear to believe that $130 million,

that to you—that is not your conscience, is that the amount of

money that is spent according to the official report, that you find

too much money, too much taxpayers’ money to pay for what the

taxpayers get in return?

Mr. SHERK. One hundred thirty million dollars is a small part of

the overall budget, but it’s still an enormous amount of money, and

we’d like to see it spent well.

Ms. NORTON. How would you set up—the Federal Government

has set up this system, not out of its munificence to its workers,

but because it is the most efficient way to deal with problems that

arise in the workplace. You would not have official time used. How

would you deal with complaints that arise every day in a large

work force, inevitable, if there was no official time and no designated person chosen to carry out the responsibilities of settling

those issues?

Mr. SHERK. What I set forward in the written statements was

that what I would do is end the official time, but then also end the

exclusive representation requirements, so that they would have no

obligation to represent non-members. If an individual Federal employee believes that the union representation is of value to them,

they should pay the union dues.

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Ms. NORTON. So you think the statute is at fault by saying that

Mr. Gage has to represent all members, regardless of whether or

not they pay dues? Are you saying people who don’t pay dues

should not be represented in their grievances, and should be what?

Mr. SHERK. I don’t think we should have exclusive representation.

Ms. NORTON. How should those employees deal with their grievances?

Mr. SHERK. It should be their choice. If you want the union representation and you want the benefits of the contract, you sign up

and pay union dues. If you don’t think it’s of much value——

Ms. NORTON. There has been a union election, Mr. Sherk. The

majority have joined a union. Do you believe in majority rule? The

majority wants to be represented. We are not going to leave out

people who decided that—who voted against the union. You think

that is unfair?

Mr. SHERK. Well, what I am proposing is that if you like Coke

or you like Pepsi at a party, you can pick whichever one you like.

You’re not required to go with what the majority choose. That’s

what I’m suggesting.

Ms. NORTON. And you do not concede that there are any efficiencies for the Federal Government in having labor pieces through

grievances dealt with on a day-to-day basis through union representation?

Mr. ROSS. The gentlewoman’s time has expired.

Ms. NORTON. Could I ask him to just get an answer to it?

Mr. ROSS. Please answer it and then we’ll have to adjourn.

Mr. SHERK. There may be some efficiencies, but there’s also some

costs there and a lot of frivolous grievances are filed.

Ms. NORTON. To the tune of $130 million.

Mr. ROSS. Thank you. Upon agreement with the ranking member

of the subcommittee, we are going to adjourn at this point and I

appreciate the witnesses being here.

With that, this subcommittee stands adjourned.

[Whereupon, at 2:50 p.m., the subcommittee was adjourned.]

[Additional information submitted for the hearing record follows:]

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