Three executive orders signed by President Donald Trump one year ago are still the subject of heated debate in the courts, and some federal agencies have taken it upon themselves to pursue the spirit of those orders, despite their uncertain future.
On May 25, 2018, Trump signed three executive orders restricting union activities and making it easier to fire under-performing federal employees.
The unions themselves said that “chaos” ensued immediately following the orders, when many federal agencies began banning the use of federal office space for union duties and cutting back on official time — used by union representatives during normal work hours to perform work like assisting fellow employees in personnel claims.
Some employees staged protests, while union officials pursued judicial relief from the orders.
Exactly three months later, a U.S. District Court judge ruled that significant portions of those orders overstepped executive authority by contradicting the original intent of Congress in labor relation legislation. The remaining portions were allowed to go forward.
The case now awaits decision by a panel of three judges on the U.S. Circuit of Appeals for the District of Colombia, after a hearing that hinged primarily on whether the courts have jurisdiction over the orders, or whether complaints should have been heard by the Federal Labor Relations Authority.
That court is likely to issue a decision on the case this summer.
So what comes next after that ruling?
After the Circuit Court Of Appeals, the Supreme Court stands as the next and last federal court to which the case could be appealed, but whether it gets there may hinge on which side wins the appeals case, the kind of decision the judges issue and whether the Supreme Court would agree to hear the case if it were appealed.
The unions’ case against the executive orders hinges on that of legislative versus executive authority: the Federal Service Labor Management Relations Statute laid out the rules for collective bargaining in the federal government, and the unions argue Trump’s executive orders overstep that legislative intent.
Since the Trump administration appeal hinges on judicial authority, the structure of any potential future appeal would likely depend on the side that ultimately chooses to appeal or not.
Regardless of the outcome of the legal battle, some federal agencies have tried to negotiate for new bargaining agreements with the unions that meet or even surpass the requirements of the executive orders.
The Department of Veterans Affairs proposed a new agreement with the American Federation of Government Employees in early May 2019 that would cut official time use by 99 percent at the agency.
The Trump executive order would only have required a reduction of official time to 25 percent of an employee’s working hours.
And while the executive orders can theoretically be challenged on potential conflict with established labor relations legislation, that same legislation leaves it up to the agencies to bargain with unions over official time use.
The agency is well within its rights to propose a new deal that slashes the available hours for official time.
Jessie Bur covers federal IT and management.