Provisions of Donald Trump’s 2018 executive orders on federal collective bargaining have been deemed to violate congressional statute by a third-party arbiter, marking what is believed to be the first instance of an agency’s enforcement of those orders to have been arbitrated in such a way.

“We’ve said all along that the president’s executive orders were an illegal assault on the collective bargaining rights of federal employees, and now we have a second ruling agreeing with us,” said National Treasury Employees Union National President Tony Reardon in a statement.

“The White House should know that we have a slew of these grievances pending in multiple agencies, all designed to prove, once and for all, that he can’t run roughshod over federal employees and labor law.”

The executive orders instructed agencies to renegotiate collective bargaining agreements and restrict the use of official time — work hours that are used by union representatives to perform certain union duties — to only 25 percent of any employee’s time.

Those orders were first challenged in U.S. District Court, which initially ruled that the orders violated provisions of the Civil Service Reform Act of 1978 and were therefore unenforceable. But an appeals court determined that the district court had lacked jurisdiction to make that determination, and instructed unions to take their case to the Federal Labor Relations Authority instead.

The court injunction on the orders was therefore lifted Oct. 2, 2019, and the U.S. Patent and Trademark Office notified its employees that it intended to implement such orders Oct. 7, namely by restricting official time to the 25 percent cap, requiring employees to seek permission before using any official time, prohibiting the use of official time to prepare or pursue most grievances against the agency and preventing the agency from bargaining on the numbers, types and grades of employees or positions assigned to any organizational subdivision.

On Nov. 5, 2019, NTEU filed a grievance with the agency alleging an unfair labor practice, and an independent arbiter determined Sept. 21, 2020, that the implementation of the orders by USPTO had violated federal statute.

At issue was the fact that statute governing federal collective bargaining protects the right of employee unions to bargain for the number of official time hours and appropriate use of those hours as part of their contracts with the agency. That statute also protects the agency’s decision whether to negotiate over the number and types of employees assigned to certain work.

The executive orders require the agency to institute certain policies outside of the collective bargaining process, and the arbitrator ruled that such requirements violate the intent of Congress and instructed USPTO to no longer enforce those orders.

“The challenged provisions of the EOs are contrary to the statute,” Arbitrator William E. Persina wrote in his decision. “Thus, an order directing the agency to refrain from enforcing those provisions and adhere to the agreement would not compel the agency to act unlawfully. To the contrary, it would bring the agency into lawful compliance with the relevant provisions of the statute.”

Persina required the agency to not only return to the management state they had been at prior to enforcing the orders, but also post a public notice acknowledging that they had violated statute.

“While the agency may have believed in good faith that it was required to implement the EOs, that does not change the fact that the agency must bear the consequences of choosing to implement EOs that conflicted with agreement provisions then in effect,” Persina wrote.

USPTO still has the option to file exceptions to the arbitrator’s decision with the Federal Labor Relations Authority, which could then be appealed to court proceedings, following much the same path that the appeals court outlined as an option of relief for federal unions.

Jessie Bur covers federal IT and management.

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