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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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