Big Parts of the Recent Executive Orders Bite the Dust

By William Wiley, August 28, 2018

As every reader of our FELTG articles knows, on May 25, 2018, the White House issued three Executive Orders directed at the federal workforce. Two of them were intended to curtail union activity in the civil service and the third was designed to increase the ability of supervisors to hold employees accountable for misbehavior and shoddy work performance. On August 25, a federal district court judge in Washington, DC, set aside (enjoined) significant parts of those orders as illegal, AFGE, et al v. Donald J. Trump, et al, DC District Court No. 1:18-cv-1261 (KBJ). In doing so, the judge put a broader spin on the concept of collective bargaining than we’ve ever had before. Here’s what you need to know now.

First, these are the specific sections of the EOs that have been enjoined:

• 13,836 (Bargaining Obligation) – Sections 5a, 5e, and 6
• 13,837 (Official Time) – Sections 3a, 4a, and 4b
• 13,839 (Accountability) – Sections 3, 4a, and 4c

All the other sections were found to be valid. Also, these sections are invalid only as they apply to management’s collective bargaining obligation.

Next, here are the actions called for by the EOs that are no longer valid:

EO 13,836

• Setting time limits for bargaining
• Requiring only written proposals be exchanged, not oral
• Barring the bargaining of the “permissive” topics of negotiations

EO 13,837

• No official time for unions to lobby Congress
• No official time to pursue grievances
• 25% limit on individual use of official time
• Limit on total amount of official time that can be negotiated
• No more free office space or free equipment for the union
• No more expense reimbursement for union officials

EO 13,839

• No 30-day limit for performance demonstration periods (aka PIPs)
• No more grieving anything relative to awards

Finally, an overview of the content and rationale of the court’s decision:

Content – Fully half of the decision is a discussion of the court’s jurisdiction and the ripeness of the issues that constitute the union’s arguments against the EOs. If you got an “A” in civil procedure in law school and think that Constitutional law is the cat’s meow, be sure to savor this section. For the rest of the FELTG Nation, you can spend your time with other more relevant matters.

Rationale – Follow this logic chain closely. It contains a leap in concept that could turn bargaining in the Federal Service on its head.

1. It is the intent of Congress, as expressed in the preamble to the Civil Service Reform Act of 1978, that agencies and unions engage in collective bargaining.
2. Although an EO is effectively a law for the purpose of collective bargaining, an EO cannot subvert the intent of Congress.
3. Collective bargaining requires that agencies approach negotiations with an open mind “with every intention of coming to a mutually acceptable result,” demonstrating flexibility in a give-and-take process.
4. Presidential statements in an EO, no matter whether they are directive or simply suggestive of goals, prevent agency officials from having an open mind. In this case, they effectively declare certain matters to be “non-negotiable.”
5. Therefore, because Congress intended that agency negotiators have an open mind, and the EOs take away negotiator open-mindedness, those parts that deny flexibility are illegal.

As a separate issue, the decision takes a swing at a principle articulated by former FLRA member Patrick Pizzella. Member Pizzella argued in dissent in several FLRA decisions that the statute’s statement that collective bargaining should be done in mind with keeping the government efficient. The judge in this case dropped footnote 14 to indicate that she felt such an argument to be wrong. She reasons that Congress has declared by definition that collective bargaining creates an efficient and effective government. If I understand her correctly, you cannot have an inefficient or ineffective government if you have collective bargaining. There’s a whole lot of Kool-Aid in that concept, if you know what I mean.

OK, this should be enough to help you keep your head above the water for a while. If you, as management, are currently engaged with a union in negotiations regarding EO mandates, you have to back down from any arguments that your proposals are the result of the directions given in the EOs. For example, you can no longer say to the union, “We demand a 25% cap on official time use by a union official because there’s an EO that says so.” However, there’s nothing that says you cannot say, “We demand a 25% cap on official time use by a union official because excessive official time is bad for America and because a federal pay check should be based primarily on the performance of federal work, not union activity.”

And finally, keep in mind that the heart of this decision is that certain parts of these EOs impermissibly interfere with collective bargaining. The court makes it clear that it is enjoining those parts only and that the remainder of the EOs are valid. Therefore, as the accountability EO applies to both bargain unit and non-bargaining unit employees, it is invalid only as to the bargaining unit employees. The requirement for a 30-day demonstration period for non-bargaining unit employees, for example, remains the directive of the President.

We mentioned above that there’s a scary tweak in the rationale of the court relative to the legal concept of collective bargaining. In some ways, it’s a bigger issue than what has been enjoined here. Check back with us for a discussion of that horror in a later FELTG article. What exciting times!  Wiley@FELTG.com