WASHINGTON (CN) – The Trump administration faced off with unions in court Wednesday over a challenge to provisions of three executive orders the unions say will fundamentally weaken the collective bargaining process for federal employees.
The hearing came just weeks after the Office of Personnel Management issued guidance to agencies on how to begin implementing President Donald Trump’s executive orders.
Taken together, the unions say the orders will dismantle and override the statutory collective bargaining scheme established by Congress in 1978, and will require federal agencies to disregard a statutory obligation to conduct good faith negotiations with employee unions.
Issued on May 25, one of the executive orders slashes “official time” which allows union representatives to assist employees on the clock with labor-management activities like filing grievances or appealing disciplinary actions.
The unions say the other executive orders throw long-standing cooperation between agency officials and union representatives into disarray, and set the stage for speedy termination of federal employees through a weakening of grievance procedures.
The American Federation of Government Employees, the National Treasury Employees Union and the National Federation of Federal Employees all challenged the executive orders in May, claiming the president had exceeded his authority.
U.S. District Judge Ketanji Brown Jackson consolidated the cases against Trump, the Office of Personnel Management and its director Jeff Pon in June. While the unions initially sought an injunction blocking implementation of the executive orders, they now seek summary judgment.
Attorneys with the Justice Department which filed a cross-motion for summary judgment July 16, have argued that Trump intended the executive orders to streamline federal collective bargaining.
“Among other things, these orders seek to eliminate unnecessary burdens and delays in the collective bargaining process between agencies and unions, to ensure that federal employees spend the clear majority of their paid time working on behalf of the public, and to promote accountability in the federal workforce by streamlining agency efforts to remove employees whose performance falls below acceptable standards” the government said in its motion.
Jackson devoted the first portion of Wednesday’s hearing to arguments on whether she has jurisdiction to even hear the claims, and whether they are ready for consideration.
According to the government, the unions must first present their claims to the Federal Labor Relations Authority, after which only appeals courts can consider the claims.
The government also argues consideration of the executive orders is premature since their impact on collective bargaining is yet to be determined, and the provisions of the executive orders being challenged by the unions will be implemented by the Office of Personnel Management following rulemaking.
The argument appeared at times to resonate with Jackson, who noted courts have a hard time evaluating claims that something is “horrible” before the action has had time to bear fruit.
“So don’t I have to wait and see?” Jackson asked.
But the unions say the time to act is now because the executive orders conflict with the 1978 Federal Service Labor-Management Relations Statute, which expressly stripped the president of any authority to issue executive orders on collective bargaining.
Prior to the 1978 law, the unions say, labor-management relations were exclusively governed by executive order. Congress passed the law after deciding collective bargaining should be off limits to the president except in discreet matters.
And seeking an administrative remedy through the Federal Labor Relations Authority would be pointless, they say, since the body lacks the authority to remedy what they contend is a constitutional violation by the president.
Pointing to D.C. Circuit precedent, the unions say federal employees can turn to the federal court to seek redress when the government violates their constitutional rights.
And given that federal agencies are beginning to implement the executive orders, the unions say the court need not wait to consider their challenge.
But the government says the 1978 law left room for the president to continue playing a role in shaping collective bargaining and negotiating policy among federal employees, giving President Trump latitude to maneuver within the confines of the law.
This left Jackson to wonder why Congress didn’t expressly say in the statute the president is authorized to do so if that’s what they intended.
Jackson heard arguments about the president’s authority to issue the executive orders and whether they were otherwise unconstitutional following a late afternoon break in proceedings, which saw union members rallying outside the E. Barrett Prettyman U.S. Courthouse.