Employment Law Daily Union challenges to executive orders must be pursued through FSLMRS statutory scheme
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Thursday, July 18, 2019

Union challenges to executive orders must be pursued through FSLMRS statutory scheme

By Ronald Miller, J.D.

Unions challenging three executive orders relating to collective bargaining rights of federal employees must pursue their claims through the scheme established by the FSLMRS, which provides for administrative review by the FLRA, followed by judicial review in the courts of appeals.

The D.C. Circuit has no power to address the merits of three executive orders issued by President Donald Trump which were alleged to have effectively reduced the scope of the right to bargain collectively for federal employees as crafted by Congress. The appeals court determined that the unions’ claims fell within the exclusive statutory scheme of the Federal Service Labor-Management Relations Statute, which the unions could not bypass by filing suit in the district court. Here, the appeals court found that the statute provided the unions with several “administrative options” for challenging the executive orders, that the challenges in this case were of the type that are regularly adjudicated through the FSLMRS scheme, and the unions’ claims were not “beyond the expertise” of the FLRA (American Federation of Government Employees v. Trump, July 16, 2019, Griffith, T.).

Executive orders limiting bargaining rights. On May 25, 2018, President Trump issued three executive orders relating to 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.

In 1978, Congress enacted the Federal Service Labor-Management Relations Statute (FSLMRS) to govern labor relations between the executive branch and its employees. The statute grants federal employees the right to organize and bargain collectively, and requires that unions and federal agencies negotiate in good faith over certain matters. The statute also established a scheme of administrative and judicial review. Administrative review is provided by the Federal Labor Relations Authority (FLRA), an agency charged with adjudicating federal labor disputes, including “negotiability” disputes and “unfair labor practice” disputes.

Union challenges. Seventeen federal labor unions challenged the EOs. The challenged provisions of the executive orders fall into three categories: provisions that (1) direct agencies to refuse to bargain over “permissive” subjects; (2) establish government-wide rules for employee and agency conduct, which may have the effect of removing mandatory subjects from bargaining; and (3) set goals that agencies must pursue during bargaining.

The unions asserted four types of claims: (1) the President had no statutory or constitutional authority to issue EOs pertaining to the field of federal labor relations; (2) certain provisions of the EOs transgress Article II’s Take Care Clause, and the First Amendment’s right to freedom of association; (3) the challenged provisions conflicted with particular provisions of the FSLMRS in a manner that abrogates the unions’ statutory right to bargain collectively; and (4) the EOs’ “cumulative impact” violates the right to bargain collectively as guaranteed by the statute.

The district court first held that it had subject matter jurisdiction, rejecting the government’s argument that jurisdiction belonged exclusively to the FLRA. On the merits, the court found that the President has the authority to issue EOs with respect to federal labor relations, but that nine provisions of these EOs violated the FSLMRS, and enjoined the executive branch from implementing those provisions.

On appeal, the D.C. Circuit reversed the judgment of the district court, concluding that it lacked subject matter jurisdiction. It concluded that the unions must pursue their claims through the scheme established by the FSLMRS, which provides for administrative review by the FLRA, followed by judicial review in the courts of appeals.

Alternative statutory scheme. District courts have jurisdiction over civil actions arising under the Constitution and laws of the United States. However, Congress may preclude district court jurisdiction by establishing an alternative statutory scheme for administrative and judicial review. To determine whether Congress has done so, the appeals court used the two-step framework set forth in Thunder Basin Coal Co. v. Reich. Under that framework, a litigant must proceed exclusively through a statutory scheme when (i) such intent is “fairly discernible in the statutory scheme;” and (ii) the litigant’s claims are of the type Congress intended to be reviewed within the statutory structure.

Here, the district court concluded that the first step was satisfied, and the parties did not dispute this conclusion. Congress passed an enormously complicated and subtle scheme to govern employee relations in the federal sector. The scheme provides the exclusive procedures by which federal employees and their bargaining representatives may assert federal labor-management relation claims. Thus, the appeals court concluded that it could fairly discern that Congress intended the statutory scheme to be exclusive with respect to claims within its scope.

The appeals court next turned to the second step. Here, the district court held that the unions’ claims were not “of the type” Congress intended for review within the statutory scheme. The appeals court disagreed.

Meaningful judicial review. Claims fall outside the scope of a special statutory scheme when, (1) a finding of preclusion might foreclose all meaningful judicial review; (2) the claims are wholly collateral to the statutory review provisions; and (3) the claims are beyond the expertise of the agency. In this case, the appeals court concluded that all three considerations demonstrated that the unions must pursue their claims through the statutory scheme and not before the district court.

The appeals court found that the unions’ argument that the statutory scheme does not provide for meaningful judicial review was foreclosed by Thunder Basin and the D.C. Circuit’s decision in AFGE v. Secretary of the Air Force. Thunder Basin instructs that unions are not necessarily entitled to raise a pre-implementation challenge in the district court, and Congress may require them to litigate their claims solely through the statutory scheme, at least so long as they can eventually obtain review and relief.

The D.C. Circuit went even further in Air Force, holding that the unions were required to raise their challenges through the scheme even if that made it impossible to obtain particular forms of review and relief.

On the present record, the appeals court concluded that the statute provided the unions with several “administrative options” for challenging the executive orders before the FLRA, followed by judicial review. If an agency follows the EOs’ goal-setting provisions while bargaining, the union could pursue an unfair labor practice. Also, if an agency refused to bargain over various subjects based on government-wide rules, the unions could charge it refused to bargain in a negotiability or unfair labor practice dispute.

Collateral claims. The Supreme Court determines whether the plaintiffs’ challenge was “wholly collateral” to the statutory scheme by asking whether the plaintiffs’ “aimed to obtain the same relief they could seek in the agency proceeding.” The appeals court pointed out that the challenge in this case is of the type that is regularly adjudicated through the FSLMRS scheme: disputes over whether the statute has been violated.

Agency expertise. Finally, the appeals court found that the unions’ claims were not “beyond the expertise” of the FLRA. Many of their claims allege that the EOs direct agencies to violate the FSLMRS by refusing to bargain over mandatory subjects or by taking actions inconsistent with the duty to bargain in good faith. These matters lay at the core of the FLRA’s “specialized expertise in the field of federal labor relations.”

Because all three considerations demonstrate that the unions’ claims fall within the exclusive statutory scheme, which the unions cannot bypass by filing suit in the district court, the appeals court reversed the district court’s judgment that it had jurisdiction, and vacated the district court’s judgment on the merits.

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