Judge de­rails ef­forts to curb fed­eral unions

The Fresno Bee (Sunday) - - News - BY NOAM SCHEIBER

Afed­eral dis­trict judge in Wash­ing­ton struck down most of the key pro­vi­sions of three ex­ec­u­tive or­ders that Pres­i­dent Don­ald Trump signed in late May that would have made it eas­ier to fire fed­eral em­ploy­ees.

The rul­ing, is­sued early Satur­day, is a blow to Repub­li­can ef­forts to rein in pub­lic-sec­tor la­bor unions, which states such as Wis­con­sin have ag­gres­sively cur­tailed in re­cent years. In June, the Supreme Court dealt public­sec­tor unions a ma­jor blow by end­ing manda­tory union fees for govern­ment work­ers na­tion­wide. (Fed­eral work­ers were al­ready ex­empt from pay­ing such fees.)

The rul­ing is the lat­est in a se­ries of le­gal set­backs for the ad­min­is­tra­tion, which has suf­fered losses in court in its ef­forts to wield ex­ec­u­tive au­thor­ity to press its agenda on im­mi­gra­tion, vot­ing and the en­vi­ron­ment.

The ex­ec­u­tive or­ders, which also rolled back the power of the unions that rep­re­sent fed­eral work­ers, had in­structed agen­cies to seek to re­duce the amount of time in which un­der­per­form­ing em­ploy­ees are al­lowed to demon­strate im­prove­ment be­fore fac­ing ter­mi­na­tion, from a max­i­mum of up to 120 days to a max­i­mum of 30 days, and to seek to limit work­ers’ av­enues for ap­peal­ing per­for­mance eval­u­a­tions. The or­ders also sought to sig­nif­i­cantly re­duce the amount of so-called of­fi­cial time that fed­eral em­ploy­ees in union po­si­tions can spend on union busi­ness dur­ing work hours.

“We are very pleased that the court agreed that the pres­i­dent far ex­ceeded his au­thor­ity, and that the apo­lit­i­cal ca­reer fed­eral work force shall be pro­tected from these il­le­gal, po­lit­i­cally mo­ti­vated ex­ec­u­tive or­ders,” Sarah Suszczyk, the co-chair of a coali­tion of gov­ern­ment­work­ers unions, said in a state­ment.

In their le­gal com­plaint, the unions ar­gued that the ex­ec­u­tive or­ders were il­le­gal be­cause fed­eral law re­quires these rules to be ne­go­ti­ated be­tween govern­ment agen­cies and the unions that rep­re­sent their work­ers.

The com­plaint said that the pres­i­dent lacks the au­thor­ity to over­ride fed­eral law on these questions, and the judge in the case, Ke­tanji Brown Jack­son, agreed, writ­ing that most of the key pro­vi­sions of the ex­ec­u­tive or­ders “con­flict with con­gres­sional in­tent in a man­ner that can­not be sus­tained.”

The White House had im­plic­itly sought to pre­empt this cri­tique in the text of the ex­ec­u­tive or­ders, styling the pro­vi­sions as mere goals that the fed­eral agen­cies should try to bring about through bar­gain­ing with the unions rather than uni­lat­eral man­dates.

But Jack­son flatly re­jected this ma­neu­ver, ar­gu­ing that the law re­quires agen­cies to ne­go­ti­ate in “good faith” and that the ex­ec­u­tive or­ders “im­pair the abil­ity of agency of­fi­cials to keep an open mind, and to par­tic­i­pate fully in give­and-take dis­cus­sions, dur­ing col­lec­tive bar­gain­ing ne­go­ti­a­tions.”

The White House, fac­ing the lat­est in a pro­lif­er­a­tion of high-pro­file le­gal chal­lenges, did not im­me­di­ately re­spond to a re­quest for com­ment.

In an­nounc­ing the ex­ec­u­tive or­ders, White House of­fi­cials had por­trayed them as a way to im­prove the func­tion­ing of govern­ment.

“These ex­ec­u­tive or­ders will make it eas­ier for agen­cies to re­move poor­per­form­ing em­ploy­ees and en­sure that tax­payer dol­lars are more ef­fi­ciently used,” An­drew Brem­berg, head of the White House Do­mes­tic Policy Coun­cil, said on a call with re­porters in May.

Many ex­perts on govern­ment bu­reau­cracy agree that it can be too dif­fi­cult to fire civil ser­vants, but they say that the ad­min­is­tra­tion went sig­nif­i­cantly fur­ther than was nec­es­sary to achieve its stated goal.

“Very clearly the ad­min­is­tra­tion is try­ing to do all it can to weaken the role of pub­lic em­ployee unions,” Don­ald F. Kettl, a pro­fes­sor of pub­lic policy at the Uni­ver­sity of Texas at Austin, said in an in­ter­view at the time. “It’s part of a far broader strat­egy, that’s in many ways bub­bling up from the states, to turn the Civil Ser­vice into at-will em­ploy­ment.”

The Trump ad­min­is­tra­tion will most likely ap­peal the de­ci­sion to a fed­eral cir­cuit court, and could then ap­peal to the Supreme Court if it loses there.

The or­ders, which were put in place across the govern­ment in July, had be­gun to cre­ate an at­mos­phere of fear among work­ers at many fed­eral agen­cies.

“Em­ploy­ees are re­ally fright­ened,” said Loni Schultz, a union of­fi­cial rep­re­sent­ing work­ers at the So­cial Se­cu­rity Ad­min­is­tra­tion in the Mid­west. “They’re fright­ened about los­ing jobs. They have house pay­ments, car pay­ments, child care.”

Union of­fi­cials had par­tic­u­larly chafed at the of­fi­cial time pro­vi­sions of the ex­ec­u­tive or­ders. The White House, call­ing the prac­tice “tax­payer-funded union time,” had por­trayed it as a boon­dog­gle in which govern­ment em­ploy­ees were paid to ad­vance the po­lit­i­cal aims of their unions while shirk­ing their of­fi­cial re­spon­si­bil­i­ties. The ex­ec­u­tive or­der had sought to cap union time at 25 per­cent of an em­ployee’s work-hours.

But union of­fi­cials ar­gued that they spent most of their of­fi­cial time de­fend­ing fel­low em­ploy­ees against un­fair or ar­bi­trary treat­ment by their su­per­vi­sors. Af­ter the or­ders were car­ried out, many spent dozens of hours each week out­side of work ad­dress­ing questions and concerns from fel­low work­ers.

Jack­son found that the rel­e­vant ex­ec­u­tive or­der “com­pletely recon­cep­tu­al­izes” the right of the unions to ne­go­ti­ate for of­fi­cial time even though Congress had specif­i­cally sought to pro­tect that right.


In June, demon­stra­tors march for pub­lic-sec­tor union rights in New York. In a rul­ing is­sued early Satur­day, a fed­eral dis­trict judge in Wash­ing­ton dealt a blow to Pres­i­dent Don­ald Trump’s ef­fort to over­haul the U.S. bu­reau­cracy.

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