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Re: Summary, Memorandum Opinion and Order of U.S. District Court,

AFGE, et al. v. Donald J Trump

 On Friday, August 25, 2018, Judge Ketanji Brown Jackson of the United States District Court for the District of Columbia issued a 116-page opinion invalidating almost all of the three Executive Orders that President Trump issued on May 25, 2018,

 Executive Orders 13836 ("Developing Efficient, Effective, and Cost-Reducing Approaches to Federal Sector Collective Bargaining");

Executive Order 13837 ("Ensuring Transparency, Accountability, and Efficiency in Taxpayer Funded Union Time Use"); and

Executive Order 13839 ("Promoting Accountability and Streamlining Removal Procedures Consistent with Merit System Principles").

 Judge Jackson's Order declares nearly all of the substantive provisions of the Executive Orders invalid, and, importantly, she enjoined federal agencies and the President's subordinates from implementing or giving effect to those provisions.

1)           The Practical Effect of the Decision

The Court found that the three Executive Orders were designed to limit the effectiveness of federal unions and to circumscribe federal agencies such that they cannot bargain in good faith. The Executive Orders limited collective bargaining on a number subjects; prohibited collective bargaining on permissive subjects of bargaining; demanded that collective bargaining be done through written proposals and that it be negotiated on a rapid time table at the end of which if no agreement was reached, the agencies were instructed to unilaterally implement their proposals; directed federal agencies to charge unions for the use of federal space and equipment; ordered the end of progressive discipline and requested that federal agencies remove discipline from grievance procedures; ordered that the federal agencies limit official time to one hour per bargaining unit member, and that it not be provided for federal lobbying or for representing the unions or individuals in grievances. With the exception of the progressive discipline, the Court held that the Executive Orders conflicted with the statutory provisions for federal sector labor­ management relations and ruled that they were invalid. The Court also enjoined the President and federal agencies from following or implementing the Executive Orders.

 In addition to invalidating the instructions set forth in the Executive Orders and the Office of Personnel Management's (OPM) subsequent instructions to federal agencies, the federal government and the President are enjoined (prohibited) from implementing them. At those agencies at which the agencies have already implemented the Executive Orders, such as unilaterally implementing provisions charging unions for use of federal space, it is unclear how that will be unraveled. Certainly, written requests should be submitted to the Agencies to immediately undo or reverse any actions that are now contrary to the Court's Order and injunction.

 We understand that some agencies may have sought to negotiate on these subjects, arguing that they needed to renegotiate CBA provisions to be consistent with the Executive Orders, or they may be seeking to implement the provisions of the Executive Orders. To the extent that agencies have done this, we recommend that the Agency be asked to withdraw any such requests, and that the Agency desist from any implementation, consistent with Judge Jackson's Order. Any refusal to do so will be a violation of the Order and the injunction that the Judge has issued.

It is possible that an Agency may argue that certain provisions of the Executive Orders remain in effect, and it is true that Judge Jackson did not invalidate all provisions of the Executive Orders.  That said, Judge Jackson made clear that those provisions remain because they are consistent with the Federal Service Labor-Management Relations Act ("FSLMRA")-the governing federal statute. As a result, if an Agency has taken an expansive or broad interpretation of those Executive Order provisions, that position may be a grievable unfair labor practice to the extent it goes beyond what the FSLMRA allows.

2)           The Court's Order Invalidates and Enjoins the President and Federal Agencies from Implementing Nearly All of the Substantive Provisions of the Executive Orders

Judge Jackson's opinion is a lengthy, very well-reasoned decision, which should make it difficult to reverse. In the opinion, the Judge sets forth the history of the FSLMRA, discusses the purpose of the federal Act and its provisions that affect labor-management relations and federal­ sector bargaining, and examines the limits of executive power in the context of the FSLMRA. Most significantly, Judge Jackson concluded that based on the statutory history, as well as separation of powers principles, President Trump's Executive Orders concerning federal labor relations must be consistent with Congress's statutory pronouncements regarding collective bargaining and official time.

Judge Jackson also found that many of the provisions of the three Executive Orders are inconsistent with the statutory right to bargain collectively as enshrined in the FSLMRA, including the requirement to bargain in good faith.  Based on this determination, she "declare[d] the following provisions invalid and will enjoin (prohibit) the President's subordinates from implementing or giving effect to:

Executive Order 13836 §§ 5(a), 5(e), 6;

Executive Order 13837 §§ 3(a), 4(a), 4(b); and

Executive Order 13839 §§ 3, 4(a), 4(c)."

In summary, those provisions are:

Executive Order 13836, Judge Jackson enjoined (prohibited) the requirement that agencies must negotiate ground rules within 6 weeks and negotiate a CBA within 4 to 6 months. The ground rules that are negotiated must require agencies to advance negotiations outside those time frames to mediation or the Federal Service Impasses Panel, and agencies must take steps to rescind any CBA provisions or ground rules that do not limit negotiations to an exchange of written proposals. Executive Order 13836, §§ 5(a), 5(e). In addition, the Judge enjoined (prohibited) the requirement that agencies are precluded from negotiating over permissive subjects of bargaining.  She found that although agencies need not agree to permissive subjects of bargaining, they must bargain in good faith with the unions who request such bargaining.

Executive Order 13837, the Judge enjoined (prohibited) the restrictions on official time. That Executive Order limited official time to one hour per bargaining unit member per year. The Court invalidated these portions of this Executive Order: the Court invalidated the prohibition on lobbying during official time; the 25% limitation on official time for any employee; the prohibition on the use of government property for union activities; the prohibition on reimbursement for expenses incurred performing non-agency business; and the prohibition of the use of official time to prepare for or pursue grievances that did not directly affect that union official himself or herself thereby prohibiting official time to prepare grievances for other employees or for the union. Executive Order 13,837, §§ 3, 4(a). In addition, Judge Jackson enjoined the prohibition on taking official time without prior agency authorization. Id. at § 4(b). This provision required the employing Agency to approve all official time before it was used by a Union official.

Executive Order 13839, the Judge enjoined (prohibited) the restrictions on negotiating grievance procedures and excluding certain subjects such as removal from grievance procedures, and the restriction on allowing employees more than 30 days to demonstrate acceptable performance. Executive Order 13,839 at§ 4(a) and 4(c). The Executive Order had ordered federal agencies to remove from the grievance procedures all terminations and removals of employees and to require that collective bargaining agreements allow employees only 30 days to improve their performance before termination.  In sum, Judge Jackson invalidated all of the above provisions and enjoined any Executive Branch employee from implementing or giving effect to the invalidated provisions.

3)           Other Potential Effects

Finally, some Agencies have interpreted the Executive Orders as government-wide rules or regulations, such that they bind the union if a contract rolled-over or renewed after the Executive Orders became effective, or that, as government-wide rules or regulations, the Agency is bound by such terms in negotiations. Judge Jackson's opinion demonstrates that this interpretation is incorrect.  She determined that the FSLMRA does not authorize the president to issue government-wide rules defining or abrogating the statutory right to bargain collectively. Id. at pp.110-111.

As a result, to the extent an Agency argues that the remaining provisions of the Executive Orders are valid government-wide rules, it should be argued that the remaining provisions are merely general statements that are consistent with the FSLMRA that do not constitute government-wide rules, and the Agency cannot use provisions in a labor contract triggered by new "government-wide rules or regulations" in order to reinterpret or reopen the contract.

Contract Negotiations.   Is your contract expired?  Probably not.  Most of the agreements (collective bargaining agreements) have provisions for a rollover (usually in the Duration Article).  This means that once the original contract period expires the agreement begins an annual rollover.  In such cases the contract automatically rolls over (continues) unless either party proposes to renegotiate the agreement.  Most agreements also have specific parameters for when either party can propose to renegotiate the agreement.  These parameters are usually also contained in the "duration" portion of the agreement.  Usually there are specific time frames for opening the agreement and proposing to open the agreement outside of theses time frames violates the agreement.  If the employer is telling the union that the agreement is no longer valid or is outdated carefully review the parameters of the agreement.  Most likely you will find that the employers allegations are unfounded. 

Is your contract outdated?  Again, probably not.  The Civil Service Act and 5 USC Chapter 71 set the parameters for bargaining in the federal sector.  Federal bargaining parameters are limited in scope when compared to other sectors.  Such items as pay and benefits are for the most part not negotiable.  Therefore many of the items negotiated in federal sector agreements are procedural and policy matters or matters regarding appropriate arrangements when the employer is exercising one of their management rights under the Statute, and union representational rights provided for by the Statute.  One of the best signs of an effective working contract in the federal sector is an agreement that has been in place many years and worked well for both parties.  Federal policies and procedures rarely change but on occasion there is a need to update some items in an agreement to ensure they reflect current laws.  However, renegotiating an agreement simply because it was executed many years ago is not necessary.  Agreements should be carefully evaluated to determine if a need exists to renegotiate.

The negotiation of a collective bargaining agreement (CBA) in the federal sector can be impacted by the political environment.  How?  Elections determine which party will be making appointments to federal agencies that have oversight over negotiation impasses and negotiability appeals processes that can be necessary to resolve bargaining issues.  The Federal Labor Relations Authority (FLRA) and Federal Service Impasses Panel (FSIP) are both lead by political appointees.  When these agencies are led by people that have ideologies that are not unbiased or are more supportive of managements rights we often see our ability to bargain hampered.  I suggest Locals seriously consider their needs and the possible outcome if they are planning to renegotiate their CBA in the near future.  You may want to consider delaying any CBA renegotiations unless there is a dire need until we have time to evaluate the bargaining environment that will be created over the next year.

 The 16th District provides Twitter updates. Any opinions are my own. 

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