An independent arbitrator ruled that the president cannot reduce the scope of bargaining between an agency and a labor group “by fiat.”
An independent arbitrator on Monday ruled that a series of 2018 executive orders seeking to reduce the role of unions at federal agencies violate federal labor law, in the first case testing an administrative review process since a federal appellate court ordered the dismissal of a legal challenge against the orders on jurisdictional grounds last year.
The three executive orders, signed by President Trump in May 2018, sought to make it easier to fire federal employees, streamline collective bargaining negotiations and reduce the scope of topics over which agencies may bargain. They also significantly curtailed union officials’ ability to use official time.
Unions sued to block the orders, and although they secured an injunction from a U.S. District Court judge, the U.S. Court of Appeals for the D.C. Circuit overruled that decision on jurisdictional grounds. The appellate court found that in order to challenge the validity of the executive orders, labor groups must first seek administrative relief through the Federal Labor Relations Authority or an arbitrated grievance.
On Monday, arbitrator William Persina gave unions their first victory in that process. Persina found that the executive orders unlawfully seek to subvert the statute governing federal labor-management relations, and that the U.S. Patent and Trademark Office engaged in unfair labor practices against the National Treasury Employees Union by implementing the orders.
In much of his decision, Persina found that the executive orders unlawfully set limits on how agencies can negotiate, contrary to Congress' intent when it passed the 1978 Civil Service Reform Act, which set up the modern federal sector labor-management relations system. On the provision that union officials may only spend a maximum of 25% of their work hours on official time, although agencies have the latitude to negotiate how much official time employees can use, limits cannot be negotiated if they are dictated “by fiat,” the arbitrator found.
“The agency presumably could engage in negotiations with the union to create a bank of official time hours available for union representatives in a fiscal year,” Persina wrote. “But again, the point is that under . . . the Statute, such an arrangement must result from negotiations. It cannot be imposed by EO.”
That was a common theme throughout Persina’s analysis of the executive orders: although agencies have the right to seek to reduce the scope of bargaining, those agencies must come to that conclusion independently and negotiate with unions toward that end—the president cannot require those changes and make them nonnegotiable via executive order.
“The issue is not, as the agency contends, whether it could elect in specific bargaining settings not to bargain on the matters mentioned in [the statute],” Persina wrote in references to an executive order provision barring agencies from negotiating over “permissive bargaining subjects.” He added: “Unquestionably, it could. The issue is whether the president can by EO preemptively prohibit individual agencies from electing to bargain on [those] matters in any and all situations, thus eliminating an agency’s discretion to engage in such bargaining.”
If Persina’s decision goes into effect, it would require the Patent and Trademark Office to roll back its efforts to implement the executive orders, restore annual leave used by a union official when the agency did not approve his official time request in a timely manner, and inform the workforce of its commission of unfair labor practices.
The agency may file exceptions to the decision and is expected to do so, at which point the case would go to the FLRA for review. Once the FLRA issues its decision, either the agency or the union may then appeal to federal appellate court.
In a statement announcing the decision, NTEU National President Tony Reardon suggested this case is only the beginning of unions’ continued litigation against the executive orders.
“We’ve said all along that the president’s executive orders were an illegal assault on the collective bargaining rights of federal employees, and now we have a second ruling agreeing with us,” Reardon said. “The White House should know that we have a slew of these grievances pending in multiple agencies, all designed to prove, once and for all, that he can’t run roughshod over federal employees and labor law.”