DC District Court Judge Makes Jurisdiction Grab in Trump Executive Orders Decision

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By on August 27, 2018 in Human Resources with 0 Comments

Judge's gavel on top of a law book against a solid white background

Thus, the fact that the Unions here have sued the President of the United States and the Office of Personnel Management to challenge the validity of the President’s Orders—i.e., a dispute that is manifestly not within the purview of the FLRA—matters, and, in this Court’s view, this fact ultimately disposes of the question of whether the court of appeals can address the Unions’ claims under section 7123.”

In a perfectly reversible decision, DC District Court Judge Ketanji Brown Jackson determined that the naming of specific defendants by the unions’ law suit challenging three presidential executive orders decided whether she had jurisdiction over the case. Really? More on this later.

A little background may be helpful.

The Civil Service Reform Act (CSRA) determined that both the Federal Labor Relations Authority (FLRA) and the Merit Systems Protection Board (MSPB) final decision appeals bypassed district courts. MSPB appeals go to the Federal Circuit while FLRA final decisions may be appealed into circuit courts of appeal. Equal Employment Opportunity Commission (EEOC) final decisions may be appealed by employees into a district court.

Since 1978, when CSRA passed, the number of FLRA cases of any substance in which a district court took part, in any way, was negligible.

Judge Jackson, in deciding the district court had jurisdiction, created an entirely new legal theory. According to her decision, there are matters in the Federal labor relations statute too broad for the FLRA to address and these, amazingly, are exactly the same matters the unions don’t like about President Trump’s Executive Orders.

Of course, nowhere in the decision does she see the provisions of the law which expressly gives FLRA broad authority to interpret the law. They’re there and easy to find:

In 5 U.S. Code § 7105. Powers and duties of the Authority, the law addresses the exact issues the unions raise:

 “(a)(1)     The Authority shall provide leadership in establishing policies and guidance relating to matters under this chapter, and, except as otherwise provided, shall be responsible for carrying out the purpose of this chapter.

      (2)     The Authority shall, to the extent provided in this chapter and in accordance with regulations prescribed by the Authority–

      (D)     prescribe criteria and resolve issues relating to determining compelling need for agency rules or regulations under section 7117(b) of this title;

      (E)     resolve issues relating to the duty to bargain in good faith under section 7117(c) of this title…”

   (G)     conduct hearings and resolve complaints of unfair labor practices under section 7118 of this title…”

In 5 U.S. Code § 7116 Unfair Labor Practices, the law also uses broad language authorizing FLRA to deal with Agency statutory violations when it says:

(a)  For the purpose of this chapter, it shall be an unfair labor practice for an agency – (8)  to otherwise fail or refuse to comply with any provision of this chapter.

It is really hard to see why the DC Circuit needs to take this case on when FLRA has all the authority of law to redress the union’s concerns unless there’s another motive.

B (1) Rises Again

One interesting example is what is called the permissive area of bargaining in the statute addressed in 5 U.S. Code § 7106 (b)(1) which states:

“(b) Nothing in this section shall preclude any agency and any labor organization from negotiating—

(1) at the election of the agency, on the numbers, types, and grades of employees or positions assigned to any organizational subdivision, work project, or tour of duty, or on the technology, methods, and means of performing work;

(2) procedures which management officials of the agency will observe in exercising any authority under this section; or

(3) appropriate arrangements for employees adversely affected by the exercise of any authority under this section by such management officials.”

Judge Jackson’s decision addresses (b)(1) by including it in things union and management can bargain and which one of the executive orders directs agencies not to. She makes a lot of this as an example of Mr. Trump’s impermissible intrusion into give and take bargaining under the statute.

Did none of her clerks whisper in her ear that President Trump was the fourth in a series of presidents to issue executive orders ordering or denying bargaining in these areas? Clinton – Do it, Bush – Don’t Do it, Obama – Do it, Trump – Don’t Do it.

Perhaps the Congress had a reason to keep the district courts out of federal labor relations, not only, if she’s any example, do they lack expertise, but she also hasn’t been exposed enough to the silliness of union assertions to take them with a grain or maybe the ton of salt they usually require.

Judge Jackson holds out a philosophy of collective bargaining in the decision which repeatedly confuses federal sector bargaining with that in the private sector.

For example, she says explicitly that union lobbying is an intrinsic right. Maybe so, but that’s not the issue in the case. The issue is whether the union gets Taxpayer Funded Union Time (official time in the law) to do it.

A lot of the cases she cites relate to private sector law under the Wagner, Taft-Hartley or other non-governmental laws. She forgets that none of the case law applicable to a company bargaining with a union are relevant under the very specific statutory framework of the CSRA of 1978. In the private sector bargaining pay for productivity is the fundamental principle driving negotiations. No such basis exists for the federal government scheme under CSRA.

This decision, long as it is, is ill considered and poorly researched and demonstrates a complete lack of understanding of how federal sector collective bargaining works. Let’s please get it into the circuit where, hopefully, law and experience and not ideology drives the decision.

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

© 2019 Bob Gilson. All rights reserved. This article may not be reproduced without express written consent from Bob Gilson.

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About the Author

Bob Gilson is a consultant with a specialty in working with and training Federal agencies to resolve employee problems at all levels. A retired agency labor and employee relations director, Bob has authored or co-authored a number of books dealing with Federal issues and also conducts training seminars.

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