Judge overturns 3 executive orders, demands good faith bargaining

| Aug 27, 2018 | Employee Rights

A federal judge has overturned most of the key provisions of the three executive orders affecting federal employees that President Trump signed in late May. Among other changes, one executive order directed federal agencies to renegotiate all union contracts involving federal employees and changed what was to happen when negotiations stall. Another limited the overall length of performance improvement plans to 30 days and constrained appeals. A third restricted the “official time” available to be used for union activities.

A coalition of federal employee unions filed suit to stop the three orders in June. They argued that federal law — Chapter 71 of the Civil Service Reform Act — laid out how the federal sector handles labor relations. Since these rules were passed by Congress and signed into law, the president lacks the authority to change them through executive orders. Executive orders, they argued, cannot expressly conflict with federal law.

Moreover, they argued, the orders violate fundamental collective bargaining rights and interfere with federal employees’ constitutional right to petition Congress for the redress of grievances.

The U.S. District Court for the District of Columbia agreed, ruling that most of the provisions “conflict with congressional intent in a manner that cannot be sustained.”

Furthermore, the court rejected a maneuver the Trump administration used to try to avoid a finding that the executive orders conflicted with existing law. The administration had couched the orders merely as goals that federal agencies were expected to achieve through bargaining with the unions.

This, too, had exceeded the President’s authority. Federal law explicitly requires federal agencies to negotiate with employee unions in “good faith.” Seen as goals, the orders “impair the ability of agency officials to keep an open mind, and to participate fully in give-and-take discussions, during collective bargaining negotiations.”

The Trump administration did win on some points. For example, agencies can legally be required to reject union proposals that limit their discretion in firing workers without going through certain disciplinary actions first. And, federal law already authorizes agencies to unilaterally impose contracts in the case of bad faith negotiation by a union.

At least one of the executive orders was purportedly intended to improve government functioning by making it easier for agencies to fire poor-performing workers. While some experts recognize that firing poor performers can be challenging due to civil service rules, this ruling shows that the administration exceeded its authority in attempting to improve the situation.

It is likely that the Trump administration will appeal the ruling to the appeals court and then, if necessary, to the U.S. Supreme Court.

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