Federal District Judge Enjoins Enforcement of Portions of the May 25, 2018, Executive Orders

On August 25, federal a district court in Washington, D.C., acting on complaints by federal sector labor unions, enjoined portions of the May 25 trilogy of executive orders designed to reduce union influence in administration of the federal workforce through limitations of the scope of grievance procedures and availability of official time and government-paid facilities for unions. In a lengthy decision, recounting the history of the federal sector labor-relations program, Judge Ketanji Brown Jackson concluded that some of the directives in the executive orders were unlawful as contrary to statutory provisions outlining the scope of bargaining and availability of official time. Enjoined were provisions of the orders directing negotiation of reduction in the scope of grievance procedures and directing negotiation of restrictions on official time and facilities made available to unions. The court weighed in on policy considerations, stating, in part:

As to the merits of the Unions' contentions, while past precedents and pertinent statutory language indicate that the President has the authority to issue executive orders that carry the force of law with respect to federal labor relations, it is undisputed that no such orders can operate to eviscerate the right to bargain collectively as envisioned in the FSLMRS. In this Court's view, the challenged provisions of the executive orders at issue have that cumulative effect.

. . .

This Court has no doubt that the net effect of these provisions is to put an entire hand on the scale with respect to certain negotiable provisions of a collective bargaining agreement before negotiations even begin (never mind the thumb), and to require agency negotiators to cut off any digits that union representatives might seek to extend in the hopes of reaching an agreement on these particular issues.

You can review the decision at:

www.politicususa.com/wp-content/uploads/2018/08/show_public_doc.pdf

It seems a fair bet that the Government will appeal the decision to the U.S. Court of Appeals for the District of Columbia Circuit. And the Government will likely argue that there's no legal difference in the President instructing agencies on how to bargain on union official time allocations and the scope of grievance procedures, and the same directive from the head of a facility to a management team bargaining a contract at the facility. There remain in place mediation and impasse procedures. We shall see. Stay tuned.

GAO Report

Federal Employee Misconduct: Actions Needed to Ensure Agencies Have Tools to Effectively Address Misconduct

(GAO-18-48 July 2018)

GAO informs the federal sector HR community that agencies employ adverse actions on an infrequent basis. What is not said is how often other means, e.g., resignations or retirements based on the possibility of adverse actions, accomplish the same result. Managers, GAO suggests, are often unwilling to initiate adverse actions because they are unfamiliar with the process. The solutions offered by GAO are nothing new, but bear repeating: better training of supervisors and HR staff; better coordination among HR, LR, and OGC offices; better use of the probationary period; and, not to be forgotten, better vetting of applicants in the first place to avoid the later need for misconduct or performance-based actions.

www.gao.gov/products/GAO-18-48

From the FLRA

Past Practice Not To Override or Substitute For Contract Provisions Addressing An Employment Condition

Dept. Of Navy. Puget Sound Naval Shipyard and Bremerton MTC, 70 FLRA No. 152

(Aug. 13, 2018) (Member DuBester dissenting)

FLRA set aside the award of an arbitrator who determined that the agency failed to follow past practice, incorporated in a contract article, of promoting apprentices every six months. The contract article addressed the apprenticeship program in general terms but it did not discuss eligibility requirements for promoting the apprentices every six months. FLRA concluded that the article was not ambiguous and that the arbitrator could not convert past practice into a new contract provision. The award was set aside because it was not draw from the essence of the contact. Member DuBester argued that the failure of the contract specifically to address the promotion process did not alter the significance of the parties' past practice, which can fill in contractual gaps.

http://www.flra.gov/decisions/v70/70-152.html