Ruling on union activity is big, but far from the final word
- By Chase Gunter
- Aug 27, 2018
A federal district court invalidated a range of Trump administration provisions regarding union activity, official time and collective bargaining, but the impact at the agency level remains unclear, and workforce disputes seem far from over.
While federal unions celebrated a win in the immediate aftermath of Judge Ketanji Brown Jackson’s ruling, Jeff Neal, senior vice president with the human resources consultancy ICF, pointed out there are aspects of the ruling that will please both the administration and the unions.
“It’s a mixed decision,” Neal said. “Each side could walk away saying they won something. There are significant things in the executive orders stay in place that agencies could implement, and there are significant things the injunction prevents.”
Overall, Neal added, “the unions are probably feeling a little bit better about [the court decision] than the administration because some of the things aimed at the institutional interest of the unions were stopped.”
Among the provisions the ruling invalidated were the limits on official time -- the time federal employees spend negotiating collective bargaining agreements -- as well as restricted physical access to government office space for union business, which “clearly constrain[ed] agency negotiators’ ability to conduct collective bargaining negotiations in good faith” and violate existing labor relations statutes, the decision read.
“Now that we have a legal ruling [on those matters] I would expect the agencies to adhere to it,” National Treasury Employees Union President Tony Reardon said.
Given this ruling, NTEU “is preparing to officially contact agency negotiators where we have open contracts, and where the agencies have proposed contract language in accordance with the president’s three executive orders, demanding that the negotiators return to the table ready to bargain in good faith,” Reardon said.
Because of the ruling, Neal said he expects some of the actions taken -- such as removing unions from the physical spaces within an agency -- “will go back to where they were” before the executive orders were issued.
“If in fact an agency made significant changes as a result of the executive order and did not do it through a process that was consistent with the [Labor Relations Statute], they could be forced to undo it,” he said. “Then they’re negotiable.”
Even before the ruling, early efforts to implement the orders at agencies had been uneven and chaotic.
The Social Security Administration was one agency that required unions to physically move out of its office space. Nicole Tiggemann, a spokesperson with SSA, told FCW the agency was now “reviewing the decision.”
Katrina Lopez, vice-president of a local American Federation of Government Employees chapter representing SSA employees, said so far, “management has not given us any information as to what they will do,” though she noted that such information could come in the near future.
“All I can say is they are not very happy,” she said.
One indisputable impact of the executive orders and the subsequent litigation, Neal said, is that the dispute will further damage the relationship between two parties that have to negotiate to get a deal done.
“It’s kind of like saying, ‘If I walk up to you and poke you in the eye, would that effect our relationship?’ ” he said. “The answer is most likely yes.”
The unions and the administration already had a rocky relationship before this apparent legal overstepping by the executive orders.
If the administration wanted to achieve the aims of the executive orders, “the better approach would have been to have bargained … if they’re patient about it,” said Neal.
In the event of a stalemate in contract bargaining, the negotiations can eventually go to the Federal Service Impasse Panel, a group of seven political appointees that has the authority to adjudicate collective bargaining disputes. But that process can be drawn out, Neal said, and “administrations are not typically patient on stuff like this.”
Jackson's decision did not invalidate all provisions of the three executive orders. Specifically, those concerning probationary periods, employee discipline and accountability remain in effect, Neal noted.
In the meantime, as officials sort out their responses to the ruling, “what agencies should do is go ahead and implement the things in the executive orders that are not subject to the injunctions,” Neal said. “There’s a lot in there, and it’s not like they’d be able to implement everything right away.”
The case can be appealed. To date, NTEU has “not been notified by the Department of Justice regarding a potential government appeal,” Reardon said.
Neal said he does not think this decision represents the end of disputes, or even litigation, between unions and the administration.
“I would be willing to bet a month’s pay there will be more litigation,” he said. “You might have some dueling decisions on these things, and my guess is this will be pretty messy for quite a while.”
Chase Gunter is a staff writer covering civilian agencies, workforce issues, health IT, open data and innovation.
Prior to joining FCW, Gunter reported for the C-Ville Weekly in Charlottesville, Va., and served as a college sports beat writer for the South Boston (Va.) News and Record. He started at FCW as an editorial fellow before joining the team full-time as a reporter.
Gunter is a graduate of the University of Virginia, where his emphases were English, history and media studies.
Click here for previous articles by Gunter, or connect with him on Twitter: @WChaseGunter