DOJ Appeals Initial Decision on Executive Orders

The Department of Justice is seeking an expedited resolution in its appeal of an initial decision overturning major provisions of 3 Executive Orders.

DOJ Requesting Expedited Decision

On September 27, 2018, the Department of Justice (DOJ) appealed the initial court decision regarding the three Executive Orders issued by President Trump on labor and employee relations issues. The Orders were issued on May 25, 2018. DOJ is requesting an expedited processing of its appeal.

The rationale for requesting an expedited decision is that, because of the initial court decision, “The President is thereby disabled, with respect to the enjoined provisions, from exercising his authority under the Constitution and statute to superintend the Executive Branch.”

Case Should Go Before the FLRA

The district court rejected the government’s argument that issues raised by the union could only go before the Federal Labor Relations Authority (FLRA). The FLRA is the agency with federal labor relations expertise and created by Congress to hear and decide cases regarding alleged violations of the Federal Service Labor-Management Relations Statute. In effect, the DOJ is arguing that the district court lacked jurisdiction to hear the claims made by the appellants in this case.

Provision on Exchanging Written Proposals

The district court also enjoined a provision of an Executive Order stating “agency negotiators shall request the exchange of written proposals” during collective bargaining and should strive to remove any existing agreements or policies that prevent exchanging written proposals.

DOJ argues that exchanging written proposals occurs in “most negotiations,” helps “to facilitate[] communication between the parties,” and can help “to objectively evaluate the parties’ good or bad faith” particularly if a third party, often the Federal Labor Relations Authority, is later required to make such an evaluation.

EO Guidance on Permissive Subjects and Negotiated Grievance Procedures

The district court also enjoined a provision of an Executive Order which states agency heads “may not negotiate over the substance of” permissive subjects of bargaining. This decision was articulated by the court despite the language of the labor relations statute allowing agencies to negotiate over permissive subjects—or not— “at the election of the agency”.

Additionally, the district court enjoined an Executive Order provision requiring agency heads, “[w]henever reasonable in view of the particular circumstances,” to strive to reach agreement with unions to exclude from collective-bargaining agreements any grievance procedures covering “dispute[s] concerning decisions to remove any employee . . . for misconduct or unacceptable performance.”

The district court concluded agencies would violate their duty to bargain in good faith if they started bargaining with a union seeking to achieve a goal, committed the time and resources necessary to achieve that goal, and reported to the President if negotiators were unable to achieve that goal.

The initial court decision also rejected several other goal-setting provisions of the Executive Orders based on the same rationale.

The Department of Justice argued that expedited resolution of this decision was necessary:

…to resolve the urgent and significant issues presented by this appeal. Prompt resolution is especially needed in light of the ongoing effects of the permanent injunction on agency management and collective bargaining throughout the federal government, and in light of the effect the injunction has on the President’s ability to supervise the conduct of his subordinates in the Executive Branch.

The unions that filed a legal challenge to the Executive Orders do not agree with the request for an expedited resolution of the issue according to the DOJ request for an expedited schedule to resolve the issues in this case.

Request for Expedited Appeal on Trump Executive Orders by FedSmith Inc. on Scribd

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