DC District Judge Ignores Critical Statutory Provision in Executive Order Case

The author says a recent decision over-turning 3 Executive Orders reflects the judge’s personal opinion rather than what is actually in the law.

In a recent article, I addressed concerns about Judge Ketanji Brown Jackson’s apparent lack of knowledge about federal sector bargaining. After reading her decision a few more times, it appears she misread the applicable federal law as well.

5 U.S. Code § 7117 addresses the duty to bargain in good faith and reads as follows:

(a) (1) Subject to paragraph (2) of this subsection, the duty to bargain in good faith shall, to the extent not inconsistent with any Federal law or any Government-wide rule or regulation, extend to matters which are the subject of any rule or regulation only if the rule or regulation is not a Government-wide rule or regulation.

What does this mean?

It appears clear the language of the statute clearly states that both the law and any government-wide regulation create limits on the scope of collective bargaining in the federal sector.

Judge Jackson applies a personal view or understanding of bargaining in her decision. Her view, intensely pro-union, is that collective bargaining cannot be limited in any way except by the statute while the clear language of the law gives any government-wide rule or regulation such authority (see above). It appears crystal clear that an Agency issuing government-wide regulations has the authority to limit bargaining on such matters. That principle has remained unchallenged since the passage of the act in 1978. 

The specific language of the statute, as cited above, balances the roles of the legislative and executive branches in the operation of federal sector bargaining. The Congress clearly gave the executive branch the authority under the law to decide what would or would not be subject to negotiation.

The Office of Personnel Management’s (OPM) regulations, for example, limit bargaining on a wide range of human resource issues. OPM could, under its authority, further limit the scope of negotiation on all of the matters it currently regulates without recourse by the union.

Or perhaps not, if Judge Jackson’s view of bargaining prevails. It sounds like the judge would second guess any General Services Administration, Office of Government Ethics, Environmental Protection Agency, Equal Employment Opportunity Commission or other government-wide regulators whose policies somehow limited a federal sector union’s ability to bargain an issue.

What Does This Have to Do with the Trump Orders?

Does anyone doubt that the president can direct OPM to issue new regulations on performance evaluation, merit promotion or any of a wide variety of subjects? Does anyone doubt that an executive order is a government-wide regulation?

Apparently Judge Jackson’s vision of bargaining is not what the Congress had in mind in writing the federal sector labor law. She had to reach for a political and largely skewed view of how bargaining actually works when the reality was right in front of her. That reality is that federal sector unions are totally unlike private sector unions. Even the most liberal judges have not poked around in private sector bargaining table issues as those parties each have their power independent of statute.

Judge Jackson misses the fundamental essence of bargaining in the federal sector. The government, not the union, represents the American citizen and taxpayer’s interests. Congress gave those Agencies with authority to issue government-wide regulations the ability to regulate to improve government and unions the right to bargain limited working conditions not otherwise addressed in law or regulation. As much as the extreme left wing would like to see unions drive government policy a la the Obama executive orders, it did not happen then and can’t now due to the nature of the applicable law.

In her conclusion Judge Jackson writes:

In their cross-motion for summary judgment, Defendants assert that the fact “that the President’s policy choices about how best to guide the conduct of employees in the Executive Branch do not align with Plaintiffs’ own policy preferences is not a proper basis for seeking judicial review.” (Defs.’ Mem. at 71.) This is undoubtedly true. But the core claim that the Unions make in the context of the instant case is that the President’s policy choices as reflected in the challenged executive orders do not align with the policy preferences of Congress, and in this Court’s view, that contention is undoubtedly true as well.

In short, there is no dispute that the principle mission of the FSLMRS is 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.” 5 U.S.C. § 7101(a). Congress did not intend for union challenges to the validity of executive orders that threaten such collective bargaining rights to be funneled to the FLRA. Upon exercising its subject-matter jurisdiction over the ripe claims that the Unions bring here, this Court has concluded that many of the challenged provisions of the Orders at issue here effectively reduce the scope of the right to bargain collectively as Congress has crafted it, or impair the ability of agency officials to bargain in good faith as Congress has directed, and therefore cannot be sustained. (My emphasis)

Judge Jackson really fails to have any clue that virtually every government-wide regulation effectively reduces the scope of the right to bargain collectively or impairs the ability of agency officials to bargain in good faith according to her theory. 

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.