What Happens Next in Federal Labor Relations Under a New President?

November 18, 2020 9:33 AM
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It’s been a tumultuous 4 years in federal labor relations. Is the assumed election of Joe Biden as President going to bring stability or chaos? Are agencies that enthusiastically embraced the Trump Administration’s extreme management approach to labor relations secure in the gains they made at the bargaining table in many cases through the rather generous help of the Federal Services Impasses Panel?

As a I noted in my previous article, The Swing of the Pendulum, labor relations go back and forth favoring management or unions based on which political party is in power. However, the Trump Administration swung the pendulum to a degree never seen before in federal labor relations.

From the union perspective, the Trump dictates were aimed at destroying federal unions. Many management labor relations representatives, however, believe they were simply doing their job applying the policies that the Administration expected of them. 

Let’s look at how the changes in federal labor relations were made by the current Administration:

Trump Executive Orders 

President Trump issued three Executive Orders that impacted federal labor relations: Executive Orders 13836, 13837 and 13839. The simple answer to these is that the incoming Administration will rescind them. This should be no shock to anyone. President Bush rescinded President Clinton’s Executive Order on Labor Management Partnerships the second day he was in office. It took President Trump about a week to rescind President Obama’s Executive Order on labor management forums.

For the new Administration, rescinding Executive Orders is the easy part. The real question becomes what happens to the unions affected by them?

Because it has never been determined by a federal court that the Trump Executive Orders where in fact legal or whether they violate the Federal Service Labor Management Relations Statute (Statute), this makes what happens next problematic.

A Washington DC, Federal District Court Judge issued an injunction stopping the Executive Orders from going into effect because the judge believed they violated the Statute. The injunction was overturned by the Federal Circuit Court of Appeals for the DC Circuit on the grounds that the unions had not exhausted their administrative remedies. They should have first gone through the Federal Labor Relations Authority (FLRA). The Circuit Court did not rule on whether the Executive orders were violative of the Statute. 

A recent arbitration decision by Arbitrator Persina found an Agency that used the Executive Orders to support their position in bargaining committed an unfair labor practice because the Executive Orders violated the Statute. This decision can be appealed to the FLRA on an exception to the arbitration award. Any decision of the FLRA on this case can be appealed to Federal Court as one of the few arbitration decisions eligible for Federal Court review. This process could take years and is dependent on the FLRA overturning the arbitration award and the Agency filing exceptions.

The Federal Service Impasses Panel (FSIP) has considered the Executive Orders as “Guidance” and given them deference when deciding impasse issues. In fact, they have been the default position of the Panel when it has found, very frequently, that unions, and occasionally an Agency, have not convinced it that their position should prevail when the issue before it concerns something found in the Executive Orders, the only exception being when Agencies proposed that various issues that the Executive Orders required an Agency to exclude from the grievance procedure.

FSIP found frequently that the Agencies did not meet the standard found in 1983 Federal Court case to exclude issues from the grievance procedure. On the other hand, when Agencies proposed to give the union more official time than provided for in the Executive Order, the FSIP commonly found that the Agency had not proved that the union should be given more official time and ruled that the time provided for the union in the Executive Order should be used. It could be argued that FSIP was, in fact, acting as an adjudicator with the role of enforcing the Executive Orders except in the narrow case where a federal court decision already had determined an Executive Order provision was contrary to law.

What Happens Next?

The fate of the legality of the Executive Orders looms. If a Federal Court or a Democratic majority FLRA were to rule that the Executive Orders were contrary to the Statute, the question becomes what happens next?

It is long-standing precedent that if a provision in a collective bargaining agreement is contrary to law a party is not obligated to comply with it. The unions could argue that these provisions should be considered null and void and the parties should be ordered to renegotiate the collective bargaining agreement.

A contrary position would be that many of the provisions were based on “Guidance” which the Executive Branch has the right to give to an Agency.

The FSIP fashioned a solution to the bargaining dispute based on this “Guidance” which at the time was not considered illegal. However, going through the court process will take considerable time, potentially years. 

An additional question is whether the Biden Administration has the authority through an Executive Order to require federal agencies to reopen their collective bargaining agreements for the purpose of renegotiating the provisions affected by the Executive Orders. This could be done regardless of whether the Executive Orders are declared illegal. The parties can mutually agree to reopen a collective bargaining agreement at any time regardless of the language in the agreement. Many Agencies with the full support of the FSIP obtained 7-year terms for their collective bargaining agreements. This makes reopening absent a voluntary reopening even more difficult. 

The one doubt, as to the authority, is based on a federal court decision during the Clinton Administration which held that the President did not have authority to require Agencies to bargain over 7106(b)(1) permissive issues. The Court said that the President did not have the authority under the Statute to order agencies to bargain over 7106 (b) (1) but that the agencies had sole authority to make that decision. The Court found that the authority was given to the Agencies by Congress not to the President.

It could also be argued that Congress gave the Agencies sole authority over reopening agreements. However, if Agency heads are simply asked by the President to reopen their Agencies’ collective bargaining agreements and they agreed to do so, it would most likely be impossible to challenge. 

FLRA Decisions 

There are a number of FLRA decisions which the unions would like to see overturned. Normally such decisions await a new case which new deciders would have a chance to review and overturn if appropriate.

The Trump FLRA was not reluctant to overturn precedent going back 30 years or more. Some of these decisions undoubtedly are winding their way through the Federal Court appeal process. This can take years.

The FLRA

Currently, the term of one Republican member of the FLRA expired on July 1, 2020. That Member may continue to serve until the end of the next Congress unless a successor is appointed before that time. However, there is nothing in the Vacancies Statute, that I am aware of, which precludes the President from removing a holdover FLRA Member who has completed their term.

Potentially, it could be up to a year before the FLRA is returned to Democratic control. This assumes the Senate is willing to expeditiously act on a Biden Administration nomination for a replacement of the Republican Member.

There will be a new Chairman of the FLRA soon after the inauguration, since the authority to name a Chairman resides with the President. Naming a new Chairman can have a significant impact on the operations of the FLRA.

Whether or not a majority Democratic FLRA could review the legality of the Trump Executive Orders becomes another interesting question. Once the Executive Orders are terminated, could a new FLRA review the impact the illegal Executive Orders had on existing collective bargaining agreements?

As will be discussed, this might either take the form of as Major Statement of Policy or from an unfair labor practice or negotiability appeal. Both of which will take considerable time to before a decision can be issued. 

General Statements of Policy or Guidance 

The Trump FLRA has used General Statements of Policy or Guidance to decide significant labor relations issues. Some of these have also overturned long standing precedent.

In fact, three were issued within approximately a month of the election. They related to significant issues concerning mandatory bargaining over zipper clauses, Agency Head review of agreements, and the standard to be used in determining when there is a duty to bargain concerning a change in working conditions.

A cynic could consider the timing so close to the election as rather more than coincidental. The question is, “Can these Major Policy Statements be terminated like an Executive Order?”. It has never been done before, probably because not many have been issued until this Administration.

If the FLRA can issue a Major Policy Statement can it take it back? A General Statement of Policy is usually based on a request by a Federal Agency or union and in the case of one just issued by the National Right to Work Legal Defense Foundation. A requester is not a litigant before the FLRA.

If the FLRA declines to make a General Statement of Policy, it appears there isn’t any right of appeal. When the next Republican member of the FLRA is replaced by a Democratic member, the FLRA could vote to withdraw the General Statements of Policy. If the FLRA has the statutory right to issue them, then it should have the right to withdraw them.

This does not mean there may not be litigation by groups such as the National Right to Work Legal Foundation. It would be an interesting question as to how it would have standing to sue since it could have a hard time showing how it was harmed by the termination of the Major Statement of Policy.

FSIP Decisions

The members of the FSIP are appointed by the President and not required to go through Senate Confirmation. Likewise, they may be removed by the President at any time. A simple letter from the White House saying you are being removed would be sufficient. It is expected that soon after the inauguration all current members of the FSIP will be removed.

As discussed above, the FSIP considers the Trump Executive Orders as “Guidance”. Rather than being treated solely as guidance, FSIP decisions used the Executive Orders as the standard that both sides must meet when a dispute relates to an issue subject to the Executive Orders. Rather than just being “Guidance,” the FSIP has enforced the Executive Orders when a party did not meet some unstated FSIP standard. 

The FSIP has relied on the Executive Orders in many cases to resolve impasse disputes. It becomes an interesting question as to the legality of FSIP decisions if the Executive Orders are found to be contrary to the Statute. Since union proposals have been measured against them, and often found wanting, what happens if the “Guidance” is found to be illegal? Does this make their decisions also contrary to law?

There is no appeal of FSIP decisions. However, could the FLRA issue a Major Policy Statement which states collective bargaining agreements based on an FSIP decision which relied on the illegal Executive Orders are now void? This remains to be seen.

FLRA General Counsel

There has been no appointed FLRA General Counsel for the majority of the Trump Administration. As a result, unfair labor practice cases have been investigated, but no complaints alleging violations of law can be issued.

In the past, there have been gaps without a General Counsel, but none anywhere near this long. Undoubtedly there are hundreds of potential unfair labor practice complaints awaiting to be issued.

Without a General Counsel, the Office of General Counsel investigates cases but just stacks them up awaiting a General Counsel. Due to a lack of General Counsel, it is likely that there is also a considerable number of appeals of FLRA Regional Director’s decisions to dismiss unfair labor practice charges waiting to be decided. Any of these cases could deal with the issue of whether the Executive Orders violate the Statute. New unfair labor practice charges could also be filed alleging that enforcement of illegal provisions of a collective bargaining agreement is contrary to law. 

Chaos or Stability

The Trump Administration made what unions consider to be drastic changes in federal labor relations, as discussed above. Even with the change in Administrations, it may be difficult and time consuming to put Humpty Dumpty back together again.

Some of the changes, such as terminating the Executive Orders, can be easily undertaken. New members of the FSIP can simply be put in place. However, it may take a while to have a new Member of the FLRA appointed and confirmed by the Senate, especially if there is Republican Senate majority. The same applies to a new General Counsel. 

The most difficult issue will be the numerous collective bargaining agreements bargained under the Trump Executive Orders and the General Statements of Policy. It may take a while to have decisions that declare the Executive Orders contrary to the Statute. It may also take a while to have a Biden FLRA majority to overturn General Statements of Policy. 

If Agencies decide to reopen their collective bargaining agreements to address only issues related to the Executive Orders, negotiations could be quickly completed, especially with a new FSIP in place. However, it becomes complicated for those agreements that were completed before the injunction on the Executive Orders was terminated by the Circuit Court of Appeals. The argument would be that since the Executive Orders were not in effect, they did not have an impact on the outcome of negotiations, including the FSIP decisions. Whether or not these agreements deserve the same status as ones decided after the injunction was lifted, is more difficult to answer. 

In the immediate aftermath of the change in Administrations there could easily be chaos, with many unions demanding that their collective bargaining agreements be reopened. The approach to labor relations by the Trump Administration has led to an unprecedented number of reopened contracts because Agencies were required to reopen their Agreements. There may not be a Biden FLRA for a significant period of time unless there is an extraordinarily speedy confirmation of a new Member. 

An intangible is the impact of the Trump Administration approach to labor relations on future relationships between labor and management. Will the unions prioritize payback above reinstating a good relationship?

Many union leaders believe this Administration was aiming to basically gut federal unions. Will they willingly set aside these suspicions and work cooperatively with their management counterparts who executed the Administrations’ policies? If reconciliation is possible, then stability will again be the model in federal labor relations. However, reconciliation in some Agencies may take some hard work.

© 2020 Joe Swerdzewski. All rights reserved. This article may not be reproduced without express written consent from Joe Swerdzewski.

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About the Author

Joe Swerdzewski, former General Counsel of the FLRA & owner of JSA LLC is the author of The Essential Guide to Federal Labor Relations, A Guide to Successful Federal Sector Collective Bargaining, etc. For more info on JSA’s services, email [email protected] or subscribe to JSA’s newsletter.

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