Trump Union Activity Orders Garner More Labor Challenges

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By Louis C. LaBrecque

Two of the three federal workforce executive orders that President Donald Trump issued on May 25 are being challenged by federal employee unions. They aren’t ruling out further challenges.

“We continue to review all of our options regarding all three executive orders,” Tony Reardon, president of the National Treasury Employees Union, told Bloomberg Law June 4.

The three executive orders from Trump make it easier to fire federal workers, require the government to review its collective bargaining agreements for cost savings, and address the issue of federal employees spending more than 25 percent of their work hours on union representation issues. The only one of the three orders that hasn’t been challenged yet is the collective bargaining order.

The American Federation of State, County and Municipal Employees “only challenged the official time order for the time being, but we are currently evaluating challenges to the other two Executive Orders, as well,” a senior AFSCME official said in a June 4 email. The official was referring to the order establishing a 25 percent limit on federal employees’ use of work hours for union activities.

Complaints filed by AFSCME and the NTEU June 1 follow an earlier complaint filed by the American Federation of Government Employees. The treasury employees’ union filed its own separate complaint while AFSCME is asking the U.S. District Court for the District of Columbia to allow it to file a complaint as an intervenor in the AFGE case.

At least one attorney isn’t convinced that the unions have a case.

“I can’t figure out where the illegality is,” Bill Wiley, a San Francisco-based management-side attorney, told Bloomberg Law June 4. “It doesn’t look like the president has violated the law,” said Wiley, who trains federal agency managers on employment law matters specific to the government.

A White House spokesperson told Bloomberg Law to ask the Department of Justice for comment on the union lawsuits. The DOJ didn’t respond to requests for comment.

Challenges to Two of Three Orders

The NTEU complaint challenges both the executive order limiting the amount of time public workers can spend on union activities, which was the subject of the AFGE complaint, and a second executive order that made it easier to fire federal workers. The AFSCME complaint challenges only the union activities order.

The union activities order violates the Civil Service Reform Act, both complaints allege. The order also violates federal employees’ First Amendment right to free association, they allege.

“Congress gave federal sector labor organizations a significant portfolio of responsibilities designed, among other things, to serve the public interest. Along with these responsibilities, Congress gave labor organizations tools, such as official time, to aid them in carrying out their obligations,” the NTEU complaint says, referring to the Civil Service Reform Act.

Official time is used by federal employees during their work days on union representation activities. The Trump order specified that federal workers can spend no more than 25 percent of their work time on union business. Previously there was no limit.

The second Trump order making it easier to fire federal employees improperly changes the terms of performance improvement periods by limiting them to no more than 30 days, again violating the CSRA, the NTEU complaint alleges. Congress didn’t intend to limit PIPs in this way, the union said.

Challenge May Be Ahead for Third Order

The third order, which hasn’t been challenged in any of the lawsuits, calls on federal agencies to review existing collective bargaining agreements for cost savings. A challenge could be forthcoming if an agency attempts to justify reopening an existing agreement because of the order.

Both the AFGE and AFSCME are AFL-CIO affiliates. The AFGE is the largest federal employee union, representing about 700,000 federal and District of Columbia government employees. AFSCME describes itself as “the nation’s largest and fastest growing public services employees union with more than 1.6 million working and retired members,” most of whom work for state and local governments.

The NTEU is an independent union that represents about 150,000 employees at 32 federal agencies, including the Internal Revenue Service.

The cases are Nat’l Treas. Emps. Union v. Trump, E.D. Va., No. 1:18-cv-00649, complaint filed 6/1/18 and Am. Fed’n of Gov’t Emps. v. Trump, D.D.C., No. 1:18-cv-01261, motion to intervene 6/1/18.

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