Judge Strikes Down Most of Trump’s Executive Orders Targeting Federal Employee Unions

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By on August 25, 2018 in Court Cases with 0 Comments

Judge's gavel on a grey background

A federal judge has struck down most of the key provisions of President Trump’s three recently issued executive orders that are intended to weaken federal employee unions.

Judge Ketanji Brown Jackson, appointed by President Obama to the U.S. District Court for the District of Columbia in 2012, issued the decision which is more than 120 pages long.

The executive orders placed additional restrictions on unions and made it easier to fire federal employees for non-performance. See Restricting Federal Unions and Firing Poor Performers.

What the Decision Upheld

The judge appeared to take pleasure in outlining the relatively insignificant provisions of the Executive Orders her decision found acceptable.

Her decision states:

What remains (of the Executive Orders) are the few challenged directives that have neither reduced the scope of protected collective bargaining rights nor hampered good faith bargaining, and, thus, cannot be said to conflict with the FSLMRS.

The few provisions she cites as remaining “…that have neither reduced the scope of protected collective bargaining rights nor hampered good faith bargaining…” are largely portions of the Orders that are relatively insignificant. These include retaining a provision noting the Office of Personnel Management (OPM) is responsible for administering the Executive Order; the definition of a “union time rate”; and a provision that a supervisor is not required to use progressive discipline.

Rationale for Dismissing Executive Orders

The decision notes that requiring advance approval for a union representative to use official time “confers upon management the discretion to dictate when, if ever, union employees may use paid time to engage in union activities.”

“But to the extent that the Order confers upon management control over when (and if) official time is used to do anything else union-related, it effectively shifts the determination of what is “reasonable, necessary, and in the public interest” away from both parties…and hands that crucial decision over to management alone….”

Permissive Topics of Bargaining

Under the Executive Orders, permissive topics of bargaining would be removed from topics of negotiations. As noted in the decision, “this means that unions and agencies will no longer engage in negotiations over such topics as ‘the numbers, types, and grades of employees or positions assigned to any organizational subdivision, work project, or tour of duty’ and ‘the technology, methods, and means of performing work’—matters that Congress specifically designated as subject to negotiation ‘at the election of the agency’….”

The decision concludes that this prohibition “reduces the scope of the protected right to bargain in an impermissible manner.”

The restrictions on official time and limitation on bargaining “exacerbates management’s advantages over labor and hampers unions’ ability to engage effectively in future collective bargaining, contrary to the clearly articulated goals of the FSLMRS (labor management relations statute).”

Good Faith Bargaining

In a nutshell, the decision concludes with regard to good faith bargaining that the Executive Order prohibitions are unacceptable in a labor relations context because:

…agency negotiators are told that they must enter into the negotiating arena wielding predetermined goals, and must be prepared to fight to the death on these prescribed issues, in a manner that, in this Court’s view, is not meaningfully susceptible to the open “give and take” negotiating process that the duty to bargain in good faith anticipates.

Summary

The judge concluded that “Defendants made a host of compelling counterarguments, but upon reflection, none of them effectively counters this Court’s conclusion that the challenged provisions of the Orders…exceed the President’s statutory authority because they conflict with the letter and the spirit of the FSLMRS.”

As noted in a FedSmith article when the Executive Orders were first issued, unions will work hard to delay their implementation and implementation will take time. In large part, the final result will rest with the judicial system in interpreting the labor relations statute and the intent of Congress as well as the content of the Executive Orders.

The case is likely to be quickly appealed and could eventually wind up before the U.S. Supreme Court.

While the terms “public interest” and “effective and efficient government” are used throughout the decision, the initial decision largely defines these terms to the benefit of federal employee unions. Whether any decision from the Court of Appeals agrees with this approach remains to be seen.

AFGE, NTEU v. Trump (1:18-cv-1261)

© 2018 Ralph R. Smith. All rights reserved. This article may not be reproduced without express written consent from Ralph R. Smith.

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About the Author

Ralph Smith has several decades of experience working with federal human resources issues. He has written extensively on a full range of human resources topics in books and newsletters and is a co-founder of two companies and several newsletters on federal human resources. Follow Ralph on Twitter: @RalphSmith47

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