By Sebastian Duda /

Unions, Trump Administration Prepare to Face Off in Court Again Over Workforce Executive Orders

Oral arguments in the White House’s appeal of a decision blocking the measures are slated for April.

When federal employee unions and the Trump administration go before the U.S. Court of Appeals for the D.C. Circuit in April over the White House’s workforce executive orders, their arguments likely will be similar to what they delivered before a lower court last summer.

Both the Justice Department and more than a dozen labor groups have filed written arguments in the government’s appeal of a ruling from U.S. District Judge Ketanji Brown Jackson, which invalidated key provisions of three executive orders aimed at making it easier to fire federal workers and reducing the influence of federal employee unions. Jackson found that, taken together, the executive orders amounted to an “evisceration” of the right to bargain collectively as guaranteed in the 1978 Civil Service Reform Act.

In May 2018, President Trump issued three executive orders targeting collective bargaining in the federal sector. The first standardized the length of performance improvement plans at 30 days and removed adverse personnel actions from the administrative grievance process. Another order attempted to set time limits on collective bargaining negotiations between agencies and unions, while the third order severely restricted union employees’ ability to use official time, limited which activities could be conducted under official time and ordered agencies to cease providing labor groups with office space and other agency property rent-free.

In its written arguments, the Justice Department argued that Jackson lacked jurisdiction to decide the case and that any challenge of the executive order’s provisions must go through the Federal Labor Relations Authority. Even on the merits, attorneys argued that the invalidated provisions were in some cases merely non-binding “goals” for agencies in labor-management negotiations, and others were governmentwide rules that are constitutionally within the president’s authority to issue.

“The court concluded that the president’s orders violated the statute, but its justifications for invalidating the challenged provisions would apply even if agencies had adopted such provisions themselves,” the Justice Department wrote. “Yet nothing in the statute limits agencies’ authority to seek to accomplish on their own what the president directed here. And any suggestion that the president cannot order his subordinates to engage in lawful conduct would conflict not just with the statute but with Article II [of the Constitution].”

The Trump administration further suggested that although the Civil Service Reform Act allows agencies and unions to bargain over workplace conditions, the government is not necessarily required to do so in all instances.

“The collective bargaining [executive] order appropriately exercises the president’s power to direct agency heads in how to use their authority under . . . the statute to elect against permissive bargaining,” attorneys wrote. “The district court erred in concluding that a statute that leaves the availability of permissive bargaining to ‘the election of the agency’ actually requires agencies to elect some unspecified amount of permissive bargaining.”

The unions, in a joint filing, repeated their argument that the FLRA, which adjudicates disputes between agencies, is not equipped to handle claims that an administration’s order to agencies is in violation of the law. And the claim that the challenge must go through the FLRA runs against the Justice Department’s own contention that some provisions of the executive orders represent governmentwide rules that are exempt from bargaining.

“The authority may apply executive orders,” the unions wrote. “It may, in determining whether a specific bargaining proposal is negotiable or whether [an unfair labor practice] has been committed, weigh a bargaining proposal or agency action against the provisions of an order. But the authority may not deviate from the plain language or meaning of an order when doing so, nor may it declare an order invalid or enjoin its provisions.”

The unions further argued that the executive orders’ “goal-setting” provisions, as described by the White House, preclude agencies from bargaining in good faith.

“This court has instructed that, for good-faith bargaining, ‘parties must “enter into discussions with an open mind and a sincere intention to reach an agreement consistent with the respective rights of the parties,” ’ ” they wrote. “[The] prejudging of negotiable issues precludes true negotiations from taking place.”

Provisions of the executive orders that set governmentwide rules, like excluding adverse personnel actions from the administrative grievance process and restricting what activities can be done on official time, also violate the Civil Service Reform Act, as they represent core elements of collective bargaining, the unions said. The Justice Department has argued that they are actually more similar to restrictions against smoking in the workplace or drug testing requirements.

“In considering the reach of [the section that allows exceptions to bargaining], the district court asked the key question: why would Congress take such pains to carefully delineate a system of collective bargaining and then insert a provision that would allow the president carte blanche to ‘pick off’ the subjects of bargaining that Congress wanted to enhance?” the unions wrote. “As the district court pointed out, the government never even tried to answer this question below, and it now fails to do so on appeal.”

Oral arguments in the case are scheduled for April 4.

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