Appeals Court Revives Trump’s Orders on Federal Labor Relations

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Appeals Court Revives Trump’s Orders on Federal Labor Relations

A federal appeals court brought new life to President Donald Trump's executive orders that could make firing employees and weakening their union representation easier for federal agencies.

The three executive orders targeted federal processes that Trump called "unaccountable and wasteful," according to The Washington Post.

The Trump administration said the changes would help make the government more efficient, The New York Times reported.

The labor unions that challenged the executive orders took their claims to court, but on July 16 the U.S. Court of Appeals for the District of Columbia Circuit said the issues should have been heard by the Federal Labor Relations Authority (FLRA).

The FLRA "is charged with providing leadership in establishing policies and guidance related to federal sector labor-management relations and with resolving disputes under, and ensuring compliance with, the Federal Service Labor-Management Relations Statute," according to the FLRA's website.

The D.C. Circuit vacated a lower court's decision that blocked federal agencies from implementing Trump's executive orders. But the appeals court did not address the merits of the labor unions' claims.

The Challenge

The Federal Service Labor-Management Relations Statute allows federal employees to unionize and requires federal agencies to bargain in good faith with those unions.

In May 2018, Trump issued three executive orders that instructed agencies:

  • Not to negotiate with unions over permissive subjects—meaning that they should negotiate only items that are mandatory bargaining topics.  
  • To limit in collective bargaining agreements how much work time employees can spend on union business.
  • To exclude from grievance proceedings any dispute over a decision to remove an employee for misconduct or unacceptable performance.

Agencies were instructed to "commit the time and resources necessary" to achieve these goals and to notify the Office of Personnel Management if the goals were not met, according to documents filed with the court. Agencies were also ordered to continue meeting their obligation to bargain in good faith with labor unions.

More than a dozen unions challenged the executive orders, asserting, among other claims, that Trump didn't have the authority to issue executive orders regarding federal labor relations.

[SHRM members-only toolkit: Preparing for the Possibility of Union Organizing]

A district court ruled that the president did have this authority but held that nine provisions violated the Federal Service Labor-Management Relations Statute by removing certain mandatory and permissive bargaining subjects from negotiations and preventing agencies from bargaining in good faith. The district court blocked federal agencies from implementing the orders.

However, the D.C. Circuit reversed the lower court's ruling, finding that it didn't have jurisdiction over the disputed topic.

"The unions must pursue their claims through the scheme established by the statute, which provides for administrative review by the FLRA followed by judicial review in the courts of appeals," a three-judge panel of D.C. Circuit judges unanimously ruled.

Unions Plan to Continue Battle

The D.C. Circuit's ruling didn't revive the executive orders. Rather, the orders will remain on hold to give the unions time to figure out their legal strategy, according to The New York Times. The unions could ask the full federal appeals court to hear the case again or appeal the decision to the U.S. Supreme Court. However, the Trump administration has asked the judges to immediately lift the ban, because the court is "exceedingly unlikely" to reconsider its most recent ruling, The Washington Post reported.

J. David Cox Sr., the national president of the American Federation of Government Employees (AFGE), said the union will fight the decision "using every legal tool available." He called the ruling "a tremendous blow to federal employees and their voice in the workplace."

The AFGE represents about 700,000 federal workers.

"The decision is mistaken about the jurisdictional question, wrong on the law, and jeopardizes the rights of federal employees across the government," Cox said.

Randy Erwin, president of the National Federation of Federal Employees, told The Washington Post, "In our view, these executive orders violate the law, and we are going to continue to fight them until we get a decision that sticks."

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