In late May, President Trump signed three executive orders that purport to make changes to federal workers' rights. One order limited the length of performance improvement plans (PIPs) to 30 days. The second directed agencies to renegotiate all union contracts and changed the way agencies can operate when negotiations stall, among other proposed changes to federal collective bargaining. The third restricts the use of official time for union activities.
As we discussed at the time, the American Federation of Government Employees (AFGE) criticized all three orders and filed suit to challenge the president's authority to issue the third executive order. The proper use of official time for union activities is protected by the Civil Service Reform Act of 1978 (CSRA) and the amount of time allowed is negotiated in union contracts. Therefore, the union argues, an executive order would be ineffective to change how much official time is allowed.
Now, a coalition of 13 unions has filed suit against all three of the orders. Those unions include the National Federation of Federal Employees (NFFE), International Association of Machinists and Aerospace Workers, International Brotherhood of Teamsters, National Association of Government Employees, the National Labor Relations Board Union, National Weather Service Employees Organization and seven other organizations. The National Treasury Employees Union previously also filed legal action to challenge the orders.
The coalition of unions argues that presidential executive orders do not have the power to make changes to statutes like the CSRA.
"Congress, in passing the Civil Service Reform Act, and chapter 71 especially of that, carefully created a statutory scheme governing labor relations in the federal sector," said a spokesperson for the NFFE. "These executive orders generally are an attempt to re-legislate that, and are therefore improper."
The unions make several other charges. For example, they argue that the executive orders expressly conflict with the law, which executive orders may not do. Moreover, the orders interfere with federal employees' right to petition Congress. Further, allowing individuals but not unions to use official time to prepare grievances, the groups say, encroaches on fundamental collective bargaining rights.
The unions are seeking injunctions to prevent the Office of Personnel Management from releasing regulations in support of the executive orders. This is meant to block the orders from going into effect before noticeable changes occur.
Unfortunately, the NFFE says that there have already been impacts. Some agencies have already announced that they plan to rescind parts of their current union contracts. That may lead to yet more litigation.
In the meantime, if you are put in a PIP and believe it is being limited by executive order, contact a federal employment law attorney.