Federal Employees Go to Court vs Trump’s Exec Order
exceeds the president’s constitutional authority
Government Executive, By Erich Wagner, May 31, 2018
The largest union representing federal employees sued the Trump administration Wednesday over President Trump’s executive order significantly curbing the use of official time by union representatives, arguing the edict violates the First Amendment and exceeds the president’s constitutional authority.
In a lawsuit filed at the U.S. District Court for the District of Columbia, the American Federation of Government Employees said the White House’s Executive Order Ensuring Transparency, Accountability and Efficiency in Taxpayer Funded Union Time Use violates the First Amendment-guaranteed freedom of association and effectively rewrites portions of the 1978 Civil Service Reform Act without the assent of Congress.
Last week, Trump signed an executive order instructing agencies to no longer allow union officials to spend more than 25 percent of their work hours on official time, a practice where union federal employees are compensated for performing representational duties. The order also stipulated that unions not be able to use official time to lobby Congress or to represent employees who have filed grievances or are appealing adverse personnel actions.
The executive order also said that unions must pay rent for the use of federal office space and that agencies should stop covering official time-related travel expenses.
At the crux of AFGE’s lawsuit is the provision of the executive order barring union employees from using official time to represent a colleague in grievance proceedings, which carves out an exception for an employee working on his or her own grievance.
“Employees may not use taxpayer-funded union time to prepare or pursue grievances (including arbitration of grievances) brought against an agency . . . except where such use is otherwise authorized by law or regulation,” the order stated. “The prohibition . . . does not apply to an employee using taxpayer-funded union time to prepare for, confer with an exclusive representative regarding, or present a grievance brought on the employee’s own behalf.”
That, the union argued, is a violation of AFGE’s freedom of association.
“There is no valid basis to distinguish grievances brought by the union [on behalf of the] union or grievances in which a union representative seeks to represent another employee from grievances brought on an employee’s own behalf or instances in which an employee is to appear as a witness in a grievance proceeding,” the union wrote. “By singling out labor organizations for disparate treatment, [the executive order] unlawfully restrains and retaliates against AFGE and its union-member representatives, separately and collectively, in and for the exercise of their rights to expressive association.”
AFGE also argued that mandating the number of hours agencies can authorize for employees’ use of official time improperly amends the section of the 1978 Civil Service Reform Act governing collective bargaining negotiations and establishing official time as a lawful practice. By setting a unilateral cap on the use of official time, the administration violated the provision of the 1978 law that says the practice will be granted “in any amount the agency and the exclusive representative involved agree to be reasonable, necessary and in the public interest,” the union argued.
“[The law] provides that agencies have a duty to bargain in good faith that includes the obligation to approach negotiations with a sincere resolve to reach agreement,” AFGE wrote. “By purporting to fix a preexisting and specific cap on the amount of official time that an employee may use in a fiscal year, and by purporting to add allegedly excess amounts in one fiscal year to the cap calculation for the following year, [the order] is contrary to [existing law].”
In a statement, AFGE National President J. David Cox described the executive order as an attempt by the White House to “score political points” by bashing federal unions and employees.
“This is a democracy, not a dictatorship,” Cox said. “No president should be able to undo a law he doesn’t like through administrative fiat … Congress passed these laws to guarantee workers a collective voice in resolving workplace issues and improving the services they deliver to the public every day.”
The White House and Office of Personnel Management did not respond to requests for comment Thursday morning.