2nd Union Files Lawsuit to Block Executive Orders

Jun 4, 2018


The National Treasury Employees Union is the second federal union group to sue the Trump administration over the executive orders aimed at streamlining the firing process and negotiations.

The lawsuit, filed against Trump and the Office of Personnel Management Director Jeff Pon, argues that the executive orders on the firing process and curbing the use of official time both violate provisions of the 1978 Civil Service Reform Act. The union said that in seeking to set limits on official time, Trump has exceeded his authority and impinged on the rights of Congress. That argument echoes one made by the American Federal of Government Employees, who also filed a lawsuit.

“Congress rejected, completely, the limitations on official time in the executive orders that predated the [1978 Civil Service Reform Act],” NTEU wrote. “It chose, instead, to expressly provide for official time, without limitations, in 2 circumstances: the negotiating of a collective bargaining agreement and the participation in a proceeding before the Federal Labor Relations Authority…Congress did something else in [the law]: it purposefully left it to labor organizations and agencies to agree upon the other amounts of official time that are ‘reasonable, necessary, and in the public interest.’”

NTEU also argues that by preventing the use of official time to work on grievances on behalf of other employees, the order conflicts with existing federal law.

“By declaring that employees are barred from using official time ‘to prepare or pursue grievances (including arbitration of grievances) brought against an agency’ except when authorized by law or regulation, [the order] flatly conflicts with [the Statute], which expressly allows employee union representatives to use official time for such grievances whenever authorized by contract between the employee’s exclusive representative and the employing agency,” the lawsuit states.

NTEU also has issues with the executive order on firing. The union says the order for agencies to standardize the length of performance improvement programs at 30 days goes against the congressional limit.

“Congress chose not to define the precise length of a PIP or its list of reserved management rights. Agencies and union may thus bargain over the appropriate length of a PIP or, put differently. How long a bargaining unit employee will have to ‘demonstrate acceptable performance’…before being sanctioned for unacceptable performance,” NTEU wrote.

NTEU president Tony Reardon described the executive orders as an attempt by Trump to “unilaterally change the federal law”. “Official time ensures front-line employees have a safe place to report on-the-job harassment, discrimination, unfair retaliation, and if they seek to disclose waste, fraud, and abuse that is occurring internally at agencies,” he said. “the idea that these executive orders will make the workforce more efficient, cost-effective to taxpayers and improve the morale of federal employees is absurd.”

Joanna Friedman, a lawyer, and partner with the Federal Practice Group feels the best approach to challenging them in court would lie in how the orders interact with existing law.

“We have applicable laws here: The Civil Service Reform Act and, within that the Federal Service Labor Management Relations Statute,” she said. “Those are 2 laws that are set in stone and are supposed to be followed when referring to federal employee rights, whether its unions or everyone else. Executive orders are murky, and there’s a question of whether you really have the right to legislate by executive order…[What happens when] orders are contrary to laws and statutes and regulations that have been passed and in place for years?”

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