President Donald Trump’s three executive orders targeting federal employee unions and employee management received another legal attack Sept. 4, this time fighting against a specific agency’s implementation of the orders in its collective bargaining negotiations with unions.
The American Federation of Government Employees Council 220 — which represents Social Security Administration employees in and around New York, New Jersey and Puerto Rico — filed a case with the U.S. District Court for the Southern District of New York, asking for the courts to overturn a collective bargaining agreement that was imposed by the Federal Service Impasses Panel in May 2019.
“The main argument of the lawsuit is that the FSIP went so far beyond its authority that comes from the statute — the Civil Service Reform Act of 1978. The spirit and the intent of that law was to have unions to work in concert with various agencies in order to promote an effective and efficient federal workforce,” said Edwin Orsorio, president for AFGE Local 3369, in an interview with Federal Times.
“We believe that FSIP exceeded that by a wide margin and they did it solely because they believed they had implicit direction form the White House due to the executive orders from a year ago.”
Negotiations between the Social Security Administration and the Association of Administrative Law Judges reached an impasse in early July and have now caught congressional attention.
A District Court judge placed an injunction on Trump’s executive orders, which target things like official time and employee performance, in August 2018, but a U.S. Court of Appeals ruling overturned that lower court decision based on judicial authority rather than the merits of the arguments in July 2019. The injunction, however, remains in place, while the court decides on whether to rehear the case.
According to the AFGE local court filings, SSA included strict components of the executive orders in their collective bargaining proposal with the employee union, then bargained in “bad faith” by refusing to negotiate such provisions. A FSIP panel then imposed many of the restrictions contained in the proposal on SSA employees.
The lawsuit opposes not just the FSIP ruling itself, according to Orsorio, but also the nature of the executive orders as violations of civil service law, because FSIP acted with the interests of the administration rather than employees in mind.
“We don’t believe that there’s any separation between the two; they’re not two separate issues,” said Orsorio.
Union leaders take issue with a number of the components of the bargaining agreement, including the reduction of nationwide official time hours from 250,000 to 50,000.
“There are currently 115 labor management relations employees on the agency side. That is over 250,000 man hours,” said Angela Digeronimo, president for AFGE Local 2369 and regional vice president for Council 220 New York Region, in an interview with federal times.
“[FSIP] themselves said that the agency did not really show why they needed to drop down to the amount of hours that they dropped down.”
The reduction not only means that union representatives cannot put in the same number of hours as the labor relation employees sitting across the table from them, but it also threatens their ability to meet “fair representation” requirements in federal law, which mandate that a union must help employees file grievances and conduct proceedings or lose their standing.
But according to Orsorio, the local filing differs from the larger executive order case brought by AFGE and other unions like the National Treasury Employee Union, by contesting parts of the orders that impact employees and not union officials.
“Regardless of what happens to the locals — as far as their official time goes, office space, use of emails, all of that — that’s all secondary to the effect that the executive orders and then the FSIP decision afterwards is going to have on the employees,” said Osorio, who previously wrote a letter to lawmakers explaining how employee review processes imposed by the agreement would place an additional burden on and demoralize employees.
U.S. Code limits the time an agency employee can be placed on administrative leave, but the Social Security Administration has exceeded it for an employee following a nondestructive act protesting union crackdowns.
The local lawsuit will also be vulnerable to the same legal authority arguments as the currently ongoing national lawsuit, as the union bypassed appeal to the Federal Labor Relations Authority to take it to court.
According to Orsorio, the bypass was done because the FLRA lacks a general counsel to be able to make such decisions, and the case is of such great importance that it must be decided by the courts.
“If you tether the FSIP decision to the executive order, how can anybody from the FSIP, or the FLRA, overrule their boss, who is the president of the United States?” said Orsorio.
Lawmakers have attempted to pass provisions that would prevent agencies from unilaterally enforcing labor relations contracts as SSA has done.
A group of 217 members of Congress sent a letter to House leadership Sept. 5 encouraging them to fight to keep budget provisions that would protect federal unions when formatting a final budget law with Senate leadership.
“This is the first time in four decades that federal unions have had to come to Congress to ask for protection of the institution of fair collective bargaining, including their ability to collect union dues and obtain adequate amounts of official time to carry out legally required representational duties,” the letter states.
“Without this provision, the Trump administration will likely succeed in crushing the federal employee unions, making a mockery of the collective bargaining guarantee and rendering the task of effectively representing union members all but impossible.”