Labor & Employment Law Daily Parts of Trump EOs that reduced federal employee bargaining rights declared invalid
Wednesday, August 29, 2018

Parts of Trump EOs that reduced federal employee bargaining rights declared invalid

By Ronald Miller, J.D.

Provisions of three executive orders issued by President Donald Trump, which were challenged by labor unions that represented employees of various federal agencies, were declared invalid by a federal district court in the District of Columbia. Many of the challenged provisions effectively reduced the scope of the right to bargain collectively as Congress has crafted it, or impaired the ability of agency officials to bargain in good faith as Congress has directed. Accordingly, the President’s subordinates were enjoined from implementing or giving effect to: Executive Order 13,866 Sections 5(a) 5(e), and 6; Executive Order 13,867 Sections 3(a), 4(a), and 4(b); and Executive Order 13,839 Sections 3, 4(a), and 4(c) (American Federation of Government Employees v. Trump, August 25, 2018, Jackson, K.).

On May 25, 2018, President Trump issued three executive orders relating to the administration of the federal civil service and the rights of federal employees to engage in collective bargaining. Among other things, the Executive Orders (EOs) sought to regulate both the collective bargaining negotiations that federal agencies enter into with public-sector unions, and the matters that these parties negotiate. The EOs place limits on the activities that federal employees may engage in when acting as labor representatives; guide agencies toward particular negotiating positions during the collective bargaining process; and address the approaches agencies shall follow when disciplining or evaluating employees working within the civil service.

Numerous federal employee unions challenged the validity of the EOs. The unions contended that the EOs conflicted with the Federal Service Labor-Management Relations Act (FSLMRS), and therefore constitute ultra vires and unconstitutional actions on the part of the President, and also that the EOs impinged upon the constitutional rights of federal employees. The parties agreed to proceed straight to the merits of the union challenges by having the court resolve the dispute on cross-motions for summary judgment handled in an expedited fashion.

Contentions of the parties. Generally speaking, the unions contended that (1) the President had no statutory or constitutional authority to issue executive orders pertaining to the field of federal labor relations; (2) the challenged provisions conflicted with particular provisions of the FSLMRS in a manner that abrogates the unions’ statutory right to bargain collectively; and (3) certain provisions of the EOs transgress Article II’s Take Care Clause, and also, in one instance, the First Amendment’s right to freedom of association.

For its part, the Trump administration argued that the court lacked subject matter jurisdiction over the dispute due to the channeling effect of the FSLMRS’s administrative review scheme, and that some of the unions’ claims were insufficiently concrete to be prudentially ripe for judicial decision.

Jurisdiction. The court concluded that it had subject matter jurisdiction over the unions’ claims because, even though most disputes concerning federal labor-management relations must be channeled through the administrative review scheme that Congress had prescribed, this matter was different in kind than the disputes Congress intended the FSLMRS’s channeling provision to cover. The court further found that the unions’ legal claims were generally fit for judicial resolution, and therefore, the prudential ripeness doctrine did not pose a bar to its consideration of these challenges.

As to the merits of the unions’ contentions, the court found that while past precedent and pertinent statutory language indicated that the President has the authority to issue executive orders that carry the force of law with respect to federal labor relations, such orders cannot operate to eviscerate the right to bargain collectively as envisioned in the FSLMRS. By enacting the FSLMRS, Congress undertook to guarantee federal employees the statutory right to engage in good-faith collective bargaining with agencies and executive branch officials. The pronouncements of the FSLMRS make clear Congress’s intent that “the right of employees” to “bargain collectively . . . safeguards the public interest, contributes to the effective conduct of public business, and facilitates and encourages amicable settlements of disputes” in regard to the “conditions of [federal] employment.”

Limitation of collective bargaining. Viewed collectively, the challenged EOs reflected a decidedly different policy choice: namely, the President’s stated view that federal employees’ right to engage in collective bargaining over the conditions of their employment is not apropos of an “effective and efficient Government,” and should be rendered subordinate to the agencies’ interest “in developing efficient, effective, and cost-reducing collective bargaining agreements.”

Certain provisions of the EOs plainly further the President’s intention to restrict the scope and effectiveness of federal employees’ right to collective bargaining vis-a-vis the agencies. Provisions of EOs 13,836 Sections 5(e), 6, 13,837 Sections 4(a), 4(b), and 13,839 Sections 4(a), 4(c), stunt negotiations by narrowing the terms that the agency can entertain related to significant matters, such as access to government office space for union business and the amount of official time that can be allotted to negotiations and counseling. Others, such as EOs 13,836 Sections 5(a), 5(e), 13,837 Section 3(a), and 13,839 Section 3, clearly constrain agency negotiators’ ability to conduct collective bargaining negotiations in good faith (agency representatives are directed to pursue specific positions “whenever possible,” such as limiting the annual aggregate official time awarded amount to one hour per employed union member per year).

The court found that these provisions conflicted with congressional intent in a manner that could not be sustained. In the court’s view, directives in Executive Order 13,866 Sections 5(a) 5(e), and 6; Executive Order 13,867 Sections 3(a), 4(a), and 4(b); and Executive Order 13,839 Sections 3, 4(a), and 4(c), undermine federal employees’ right to bargain collectively as protected by the FSLMRS, and as a result, the President must be deemed to have exceeded his authority by issuing them.

As to the remaining challenged provisions—Executive Order 13,386 Section 5(c); Executive Order 13,387 Section 2(j), 4(c), and Executive Order 13,839 Sections 2(b), 2(c), 4(b)(iii), 7—the court found that they neither reduced the scope of protected collective bargaining rights nor hampered good faith bargaining, and so did not conflict with the FSLMRS. Thus, both parties’ motions for summary judgment were granted in part and denied in part.

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