By Brian A Jackson /

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.”