Agencies Cleared to Apply Trump’s Orders on Federal Labor Relations
Federal agencies may now roll out President Donald Trump's executive orders that could make it easier to fire employees and weaken their union representation. Several unions challenged the orders, but a court ruling that blocked their enforcement was recently lifted after a federal appeals court refused to revisit the issue.
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The Legal 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 (OPM) if the goals were not met, according to court documents. 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.
In August 2018, a federal district judge struck down parts of the orders. However, a three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit reversed the ruling in July, finding that the lower court didn't have jurisdiction over the disputed topic. But the orders remained on hold while the unions sought a ruling by the full panel of judges on the appeals court. On Sept. 25, the D.C. Circuit declined to revisit the ruling and the lower court ultimately lifted the injunction.
Union Leader 'Outraged'
American Federation of Government Employees National President J. David Cox said he was "outraged" by the D.C. Circuit's decision. "While we review our options, hundreds of thousands of federal government workers will suffer as their access to union representation at the worksite is stripped away by the implementation of President Trump's union-busting executive orders," he said.
Agency Responses Are Mixed
Some federal agencies—such as the Department of Veterans Affairs—have been moving quickly to enforce the orders, while other agencies—such as the U.S. Forest Service—have been working collaboratively with their unions to sign new collective bargaining agreements.
Proposal Seeks to Streamline Federal HR Practices
A recently proposed federal rule, which aligns with Trump's executive orders, would make it easier for government agencies to demote or fire poor-performing employees. The OPM's proposal also would revise regulations that govern new federal employees' probationary periods and agency data collection on adverse employment actions with the goal of making these procedures more efficient. "The federal personnel system needs to keep pace with changing workplace needs and return to its root principles," the agency said.
Written by Lisa Nagele-Piazza, J.D., SHRM-SCP
Published www.shrm.org, October 17, 2019