More Unions Sue Over Trump Federal Worker Orders (1)

From labor disputes cases to labor and employment publications, for your research, you’ll find solutions on Bloomberg Law®. Protect your clients by developing strategies based on Litigation...

By Louis C. LaBrecque

President Donald Trump doesn’t have the authority under the Civil Service Reform Act or the U.S. Constitution to make changes to the federal labor relations system, according to a lawsuit filed by 13 unions.

The lawsuit, filed June 13 in the U.S. District Court for the District of Columbia, challenges three executive orders issued by Trump on May 25. The orders make it easier to fire federal workers, require the government to review its collective bargaining agreements for cost savings, and restrict federal employees to spending no more than 25 percent of their work hours on union representation issues.

The orders could “wreck the system of collective bargaining in the federal sector” and “eliminate meaningful due process for federal employees,” Randy Erwin, president of the National Federation of Federal Employees, told reporters. Together, they “make it all but impossible for federal employee unions to offer federal workers the representation that unions in the federal sector are required by law to provide,” he said.

Erwin said the unions expect further executive orders from Trump that would affect the federal workforce. The lawsuit is intended in part to inhibit the president from issuing those orders, Erwin said.

NFFE, which represents about 110,000 federal employees, is the lead plaintiff. Twelve other unions are plaintiffs, including the International Association of Machinists and Aerospace Workers. NFFE is an IAM affiliate.

A White House spokesperson referred Bloomberg Law to the Department of Justice when asked for comment. The DOJ didn’t immediately provide comment.

`Improper Attempt to Legislate’?

Trump’s orders “are an improper attempt to legislate in the area of labor relations,” the unions’ complaint says.

The federal labor relations system is governed by the CSRA, and the president can’t make changes through executive orders, the unions allege. The order restricting the amount of time that federal employees can spend on union representation activities violates the unions’ "right to take collective action to pursue interests of their members” under the First Amendment, the lawsuit alleges.

Congress through the CSRA gave the president certain powers, such as the right to remove agencies with intelligence, law enforcement, or national security missions from the federal labor relations system, the complaint says. The law gave the Federal Labor Relations Authority and not the president responsibility for establishing overall guidance and policies on the government’s labor relations system, it says.

The lawsuit also challenges limits set in one of the executive orders on the amount of time federal employees have to improve their performance before they can be fired. Federal agencies under the CSRA are required to bargain these issues, and the FLRA--not the president--has the authority to determine the scope of bargaining over the statutory requirement that federal workers be given “an opportunity to demonstrate acceptable performance,” the complaint says.

San Francisco-based attorney Bill Wiley is skeptical of the lawsuit’s prospects.

The CSRA says agencies and unions can bargain over how much time federal employees spend on union representation activities, said Wiley, who trains federal agency managers on employment law matters specific to the government. The statute doesn’t say the president can’t issue an order generally limiting the use of official time, Wiley said.

If Trump said unions can’t advise federal employees on grievances, they might have a case, WIley said. The president instead is limiting the use of taxpayer money to pay for union representatives’ time, which is a different matter, he said.

Letter From House Republicans

Democrats and federal employee unions aren’t the only ones who oppose the executive orders. Twenty-one House Republicans sent a letter to Trump June 11 asking him to rescind the orders.

The lawmakers urge Trump “to uphold the current law and long-standing federal labor statutes that protect America’s civil service from discrimination, unfair treatment, and sexual harassment.” Unions opposing the orders also have emphasized that taking away job protections from federal employees may lead to workplace abuses.

“Management and labor must work collaboratively to ensure that the workplace is safe, fair, and productive. The federal government is most efficient when these two entities can work together to address challenges and improve the delivery of public services,” the letter says.

The letter was signed by Rep. Brian Fitzpatrick (R-Pa.) and other House members whose districts include large numbers of federal workers and retirees.

First Challenge to All Three Orders

This is the third lawsuit filed in reaction to the executive orders. It’s the first to challenge all three orders.

The American Federation of Government Employees filed a lawsuit May 30 challenging the order limiting the use of work hours for union representation. The American Federation of State, County and Municipal Employees on June 1 asked the U.S. District Court for the District of Columbia to allow AFSCME to participate in that lawsuit as an intervenor.

The National Treasury Employees Union, which isn’t an AFL-CIO affiliate, filed a separate lawsuit June 1 challenging both the order making it easier to fire federal employees and the union representation order. The union followed up June 8 with a motion for a preliminary injunction asking the district court to immediately block the orders.

The case is Nat’l Fed’n of Fed. Emps. v. Trump, D.D.C., No. 1:18-cv-01395, complaint filed 6/13/18.

Request Labor & Employment on Bloomberg Law