The Unions v. Trump in U.S. District Court for the District of Columbia: Ruling by Federal Judge Ketanji Brown Jackson
By: Marick F. Masters*
On May 25, 2018, President Trump issued three executive orders with direct bearing on labor-management relations in the federal service as structured under the Federal Service Labor-Management Relations Statute (FSLMRS). Executive Orders 13836, 13837, 13839 included provisions to expedite the process of collective bargaining, narrow the range of issues subject to negotiation, limit the use of “official time,” and facilitate the removal of poor performers in the federal employ. A White House “Fact Sheet” described these orders as “Reforming the Civil Service to Work for the American People” (www.whitehouse.gov/briefings-statements).
These orders provoked several unions representing federal employees to file suit to challenge these orders on various grounds as an excessive exercise of executive power. The U.S. District Court for the District of Columbia consolidated four suits and held hearings on their motions for summary judgment on July 25, 2018. The lead plaintiffs included the American Federation of Government Employees (AFGE), National Federation of Federal Employees (NFFE), American Federation of State, County, and Municipal Employees (AFSCME), and National Treasury Employees Union (NTEU).
The unions challenged the executive orders on three bases, according to Judge Brown Jackson’s August 25, 2018, opinion: “(1) the President has no statutory or constitutional authority to issue executive orders pertaining to the field of federal labor relations; (2) the challenged provisions [of the executive orders] conflict with particular sections of the FSLMRS in a manner that abrogates the Unions’ statutory right to bargain collectively; and (3) certain provisions of the Orders transgress Article II’s Take Care Clause, and also, in one instance, the First Amendment’s right to freedom of association.” The defendants rejected these challenges and argued that the President had wide latitude to regulate labor-management relations and related personnel matters based on power derived from being head of the executive branch where relevant federal employees work.
The orders, collectively, extended a theme articulated by President Trump in his September 29, 2017, revoking labor-management forums and discontinuing the National Council on Federal Labor-Management Relations, to wit: “The United States Government should spend tax dollars responsibly, efficiently, and in the public interest.” In his judgment, President Trump holds that neither the program behind labor-management forums nor the conjoined federal labor relations and personnel systems serve the interest of an “efficient and effective” government. In its fiscal year 2019 budget appendix on “Strengthening the Federal Workforce,” the Trump administration foretold of forthcoming reform proposals: “The Administration will propose changes in hiring and dismissal procedures to empower Federal managers with greater flexibility. Agency managers will be encouraged to restore management prerogatives that have been ceded to Federal labor unions and create a new partnership with these entities that maintains the primacy of each Agency’s obligation to efficiently and effectively accomplish its public mission.”
The executive orders mandate several changes in labor relations and personnel practices to promote the effective and efficient operation of government. E.O. 13836, “Developing Efficient, Effective, and Cost-Reducing Approaches to Federal Sector Collective Bargaining,” establishes (section 5a) that the effective and efficient conduct of collective bargaining “ordinarily” requires less than six weeks to negotiate the bargaining ground rules and four-to-six months to consummate a term collective bargaining agreement (CBA). The order stipulates that negotiations which do not conclude ground rules in this time frame should be expeditiously advanced to mediation. Section 6 of the order also prohibits agencies from negotiating so-called “permissive” bargaining items as allowed at the election of the agency and union under section 7106(b)(1) of the FSLMRS. This order’s pertinent provision requires agency heads to “instruct subordinate officials that they may not negotiate over those same subjects.”
Executive Order 13837, “Ensuring Transparency, Accountability, and Efficiency in Taxpayer-Funded Union Time Use,” seeks to achieve the purpose of ensuring “that taxpayer-funded union time is used efficiently and authorized in amounts at that are reasonable, necessary, and in the public interest.” As specified in section 3(a) of the order, official time allowances that accumulate to more than one hour for each employee in a bargaining unit (translated to 100 hours, for example, of official time for 100 bargaining-unit employees) are ordinarily not to be considered reasonable, necessary, and in the public interest. Section 4 (a) of the order also (1) forbids federal employees from lobbying activities on paid time “except in their official capacities as an employee” [and thus NOT as a union representative]; (2) prohibits “the free or discounted use of government property or any other agency resources” for union-representation activities unless such in-kind subsidies are offered to employees conducting non-agency business for “non-Federal agencies;” and (3) requires (section 4b)employees to obtain “advance written authorization from their agency” for official time.
Executive Order 13839, “Promoting Accountability and Streamlining Removal Procedures Consistent with Merit System Principles,” seeks to advance “the ability of supervisors in agencies to promote civil servant accountability consistent with merit system principles while simultaneously recognizing employees’ procedural rights and protections.” To empower supervisors accordingly, the order in section 3(a) encourages agency heads to negotiate the exclusion of disputes “concerning decisions to remove any employee from Federal service for misconduct or unacceptable performance.” If an agency is unsuccessful in negotiating this exclusion, its head must provide an explanation to the President through the Director of the Office of Personnel Management (OPM). The order further states in section 4 that no agency shall “subject to grievance procedures or binding arbitration disputes concerning: (i) the assignment of ratings of record; or (ii) the award of any form of incentive pay…” In addition, agencies are generally NOT to “afford an employee more than a 30-day period to demonstrate acceptable performance…”
Federal Judge Brown Jackson’s 119-page decision of August 25, 2018 struck down several provisions of these three orders. The Judge’s opinion centered on the both the general and specific thrusts of the orders that constituted an over-reach of presidential authority inconsistent with the two cornerstone goals of the FSLMRS: (1) the right to bargain collectively over working conditions as allowed under the statute and (2) the duty to bargain in good faith. Judge Brown Jackson stated several provisions of the order essentially undermine the “principle mission of the FSLMRS…to protect the collective bargaining rights of federal workers, based on Congress’s clear and unequivocal finding that ‘labor organizations and collective bargaining in the civil service are in the public interest.’” Thus, the Judge declared invalid and enjoined the President’s subordinates from implementing the following provisions:
Executive Order 13836
Provisions Enjoined: Sections 5(a), 5(e), and 6
Brief Description: Section 5(a) limits the negotiating period for ground rules to six weeks or less and the period for term agreements to four-to-six months; Section 5(e) requires the agency negotiators to request the exchange of written proposals; Section 6 prohibits the negotiation of “permissive” items as allowed under 7016(b)(1) of the FSLMRS.
Executive Order 13837
Provisions Enjoined: Sections 3(a), 4(a), and 4(b)
Brief Description: Section 3(a) limits the allowance of official time to one hour per bargaining unit employee; Section 4(a) prohibits Federal employees from lobbying during duty time except in official work capacity and forbids agencies from subsidizing union representation unless similar privileges are afforded non-union organizations; Section 4(b) requires obtaining advance notice for official time.
Executive Order 13839
Sections Enjoined: Sections 3, 4(a), and 4(c)
Brief Description: Section 3 orders agency negotiators to attempt to exclude cases involving the removal of employees for misconduct or unacceptable performance from negotiated grievance procedures; Section 4(a) forbids an agency from subjecting disputes over assignment of ratings or incentive pay to grievance procedures or binding arbitration; Section 4(c) mandates agencies to attempt to limit the period that disciplined employees may demonstrate acceptable performance to no more than 30 days.
On August 29, 2018, the Director of OPM, Dr. Jeff T.H. Pon, issued a memorandum to the heads of executive department and agencies rescinding the July 5, 2018 guidance the OPM issued on the executive orders as pertaining to the aforementioned enjoined provisions. Dr. Pon stated that “OPM will fully comply with Judge Jackson’s Order…”
The other provisions of the executive orders are left standing. Several are noteworthy in their potential import. First, section 3(a-e) of E.O. 13836 establishes an “Interagency Labor Relations Working Group” to, inter alia, develop “model ground rules for negotiating that, if implemented, would minimize delay, set reasonable limits for good-faith negotiations, and call for Federal Mediation and Conciliation Service (FMCS) to mediate disputed issues not resolved within a reasonable time…”. Second, section 4(a) of E.O. 13836 requires the head of each agency to prepare a report one year before contract expiration to recommend changes that would promote a more efficient and effective government. Section 6(a) of E.O. 13837 requires the reporting of detailed information on official time and agency subsidies of union representation. Third, section 6(a) of E.O. 13839 requires the annual reporting of data on “the number of adverse personnel actions taken against civilian employees by the agency, broken down by type of adverse personnel action, including reduction in grade or pay (or equivalent), suspension, and removal.”
Stay tuned for more is bound to come soon.
*Marick F. Masters is a Professor of Business Administration and Director of Labor@Wayne at Wayne State University. He is currently writing a book on “The State of Federal Sector Labor Management Relations: 1962 to the Present.” The views and opinions expressed in this article are those of the author and do not necessarily reflect the position of SFLERP.