By Brian A Jackson / Shutterstock.com

In 4-Hour Hearing, Judge Suggests Executive Orders Ignore Half of Labor Statute

Arguments from the government, federal employee unions were heavily scrutinized.

After months of posturing by the Trump administration and federal employee unions, both sides had their day in court Wednesday, as a federal judge spent four hours challenging each of them over the president’s recent workforce executive orders.

More than a dozen federal employee unions have sued in the U.S. District Court for the District of Columbia to block implementation of the executive orders, challenging their legality on a number of fronts. They have asserted that the orders conflict with the Civil Service Reform Act and that the act precludes the president from weighing in on collective bargaining altogether.

But in a brief filed last week, attorneys for the Trump administration argued that not only does the president have the authority to issue the orders, but claims of injury are premature and that such complaints must go through the Federal Labor Relations Authority, not the district court.

In May, President Trump issued three executive orders governing the federal workforce. The first seeks to shorten the firing process by standardizing performance improvement plans at 30 days across government and removing firings and other adverse personnel actions from grievance proceedings. Another seeks to consolidate management’s power in collective bargaining agreement negotiations, as well as set strict time limits on negotiations. The third order caps the use of official time at 25 percent of employees’ work hours, and it severely restricts what the practice can be used for.

On Wednesday, U.S. District Court Judge Ketanji Brown Jackson pressed hardest against the government’s argument that a provision of the Civil Service Reform Act grants the president the ability to remove virtually any topic from the list of things unions and agencies can bargain over by establishing a governmentwide rule on the topic.

“I have no idea why Congress would establish a provision that would in essence undermine its own attempt to say, ‘We are the one with the authority to establish the terms of bargaining,’” Jackson said. “But you’re saying that [this provision] allows the president to come up with rules in executive orders to do that, and that takes precedence . . . It seems like you’re reading the provision to swallow the rule.”

Justice Department attorneys argued that Trump’s actions were merely narrow removals of a couple of topics, like access to government office space and property and what practices are allowed under official time, from the long list of subjects unions can negotiate with agency leadership.

The executive orders "take narrow issues out of the scope of bargaining,” the government lawyers said. “We have a long list—.”

“Yes, you have a very long list, but that’s because Congress said that an entire thing is to be subject to bargaining,” Jackson interrupted. “But the use of government property is an enormous thing that gives unions the ability to operate, and so is lobbying. So the president can say these are really minor when you look at a list, but that’s actually really important.”

Jackson similarly pressed an attorney with the National Treasury Employees Union about the unions’ attempt to argue that the orders conflict with the Civil Service Reform Act, despite the fact that various provisions contain caveats like “except where required by law.”

“You seem to be making a facial legal challenge to these provisions, and to do so you have to show how they conflict with the statutory provision,” Jackson said. “The president could be saying, ‘My preference is not to allow official time, but if the law and the FLRA says you have to, then just ignore me.’”

“But it’s not just a recommendation,” the union attorney said. “Even the Justice Department recognizes in its brief that the order is banning the use of official time for all of these things. We considered what that [caveat] language meant, but why go through all the trouble of doing all these things if he doesn’t really mean it?”

“But don’t they have a point?” Jackson responded. “Although there’s a difference between the provisions [of the law and the executive order], isn’t that what can be negotiated? They want one hour [of official time per employee], but in some places there will be more, and there’s flexible language for that.”

“At first glance, perhaps, but as you check into the documents we submitted [from union employees], despite the nice language, when you take stock of what is actually going on, all of the agencies are treating it like a mandate,” the NTEU attorney said.

“This argument has a flavor of, ‘We all know what’s really going on here,’” Jackson said. “But that’s not how courts decide these things.”

Jackson said she would take the arguments raised under advisement and issue a written ruling in the coming days. But she had one broader critique for how the Trump administration analyzed the Civil Service Reform Act in crafting its executive orders.

“You were very careful in citing the ‘effective operation of government’ aspect of the law, but that’s only one aspect Congress was concerned about when they wrote it,” she said. “Congress makes it very clear that it believes effective unions—and collective bargaining—are in the public interest. But these EOs are about half of that balance and not the other.”

X
This website uses cookies to enhance user experience and to analyze performance and traffic on our website. We also share information about your use of our site with our social media, advertising and analytics partners. Learn More / Do Not Sell My Personal Information
Accept Cookies
X
Cookie Preferences Cookie List

Do Not Sell My Personal Information

When you visit our website, we store cookies on your browser to collect information. The information collected might relate to you, your preferences or your device, and is mostly used to make the site work as you expect it to and to provide a more personalized web experience. However, you can choose not to allow certain types of cookies, which may impact your experience of the site and the services we are able to offer. Click on the different category headings to find out more and change our default settings according to your preference. You cannot opt-out of our First Party Strictly Necessary Cookies as they are deployed in order to ensure the proper functioning of our website (such as prompting the cookie banner and remembering your settings, to log into your account, to redirect you when you log out, etc.). For more information about the First and Third Party Cookies used please follow this link.

Allow All Cookies

Manage Consent Preferences

Strictly Necessary Cookies - Always Active

We do not allow you to opt-out of our certain cookies, as they are necessary to ensure the proper functioning of our website (such as prompting our cookie banner and remembering your privacy choices) and/or to monitor site performance. These cookies are not used in a way that constitutes a “sale” of your data under the CCPA. You can set your browser to block or alert you about these cookies, but some parts of the site will not work as intended if you do so. You can usually find these settings in the Options or Preferences menu of your browser. Visit www.allaboutcookies.org to learn more.

Sale of Personal Data, Targeting & Social Media Cookies

Under the California Consumer Privacy Act, you have the right to opt-out of the sale of your personal information to third parties. These cookies collect information for analytics and to personalize your experience with targeted ads. You may exercise your right to opt out of the sale of personal information by using this toggle switch. If you opt out we will not be able to offer you personalised ads and will not hand over your personal information to any third parties. Additionally, you may contact our legal department for further clarification about your rights as a California consumer by using this Exercise My Rights link

If you have enabled privacy controls on your browser (such as a plugin), we have to take that as a valid request to opt-out. Therefore we would not be able to track your activity through the web. This may affect our ability to personalize ads according to your preferences.

Targeting cookies may be set through our site by our advertising partners. They may be used by those companies to build a profile of your interests and show you relevant adverts on other sites. They do not store directly personal information, but are based on uniquely identifying your browser and internet device. If you do not allow these cookies, you will experience less targeted advertising.

Social media cookies are set by a range of social media services that we have added to the site to enable you to share our content with your friends and networks. They are capable of tracking your browser across other sites and building up a profile of your interests. This may impact the content and messages you see on other websites you visit. If you do not allow these cookies you may not be able to use or see these sharing tools.

If you want to opt out of all of our lead reports and lists, please submit a privacy request at our Do Not Sell page.

Save Settings
Cookie Preferences Cookie List

Cookie List

A cookie is a small piece of data (text file) that a website – when visited by a user – asks your browser to store on your device in order to remember information about you, such as your language preference or login information. Those cookies are set by us and called first-party cookies. We also use third-party cookies – which are cookies from a domain different than the domain of the website you are visiting – for our advertising and marketing efforts. More specifically, we use cookies and other tracking technologies for the following purposes:

Strictly Necessary Cookies

We do not allow you to opt-out of our certain cookies, as they are necessary to ensure the proper functioning of our website (such as prompting our cookie banner and remembering your privacy choices) and/or to monitor site performance. These cookies are not used in a way that constitutes a “sale” of your data under the CCPA. You can set your browser to block or alert you about these cookies, but some parts of the site will not work as intended if you do so. You can usually find these settings in the Options or Preferences menu of your browser. Visit www.allaboutcookies.org to learn more.

Functional Cookies

We do not allow you to opt-out of our certain cookies, as they are necessary to ensure the proper functioning of our website (such as prompting our cookie banner and remembering your privacy choices) and/or to monitor site performance. These cookies are not used in a way that constitutes a “sale” of your data under the CCPA. You can set your browser to block or alert you about these cookies, but some parts of the site will not work as intended if you do so. You can usually find these settings in the Options or Preferences menu of your browser. Visit www.allaboutcookies.org to learn more.

Performance Cookies

We do not allow you to opt-out of our certain cookies, as they are necessary to ensure the proper functioning of our website (such as prompting our cookie banner and remembering your privacy choices) and/or to monitor site performance. These cookies are not used in a way that constitutes a “sale” of your data under the CCPA. You can set your browser to block or alert you about these cookies, but some parts of the site will not work as intended if you do so. You can usually find these settings in the Options or Preferences menu of your browser. Visit www.allaboutcookies.org to learn more.

Sale of Personal Data

We also use cookies to personalize your experience on our websites, including by determining the most relevant content and advertisements to show you, and to monitor site traffic and performance, so that we may improve our websites and your experience. You may opt out of our use of such cookies (and the associated “sale” of your Personal Information) by using this toggle switch. You will still see some advertising, regardless of your selection. Because we do not track you across different devices, browsers and GEMG properties, your selection will take effect only on this browser, this device and this website.

Social Media Cookies

We also use cookies to personalize your experience on our websites, including by determining the most relevant content and advertisements to show you, and to monitor site traffic and performance, so that we may improve our websites and your experience. You may opt out of our use of such cookies (and the associated “sale” of your Personal Information) by using this toggle switch. You will still see some advertising, regardless of your selection. Because we do not track you across different devices, browsers and GEMG properties, your selection will take effect only on this browser, this device and this website.

Targeting Cookies

We also use cookies to personalize your experience on our websites, including by determining the most relevant content and advertisements to show you, and to monitor site traffic and performance, so that we may improve our websites and your experience. You may opt out of our use of such cookies (and the associated “sale” of your Personal Information) by using this toggle switch. You will still see some advertising, regardless of your selection. Because we do not track you across different devices, browsers and GEMG properties, your selection will take effect only on this browser, this device and this website.