The stage is set for a major battle involving President Trump’s aggressive attack on federal labor organizations, which has already weakened their operations.
In courtroom 17 of the U.S. District Court for the District of Columbia, Judge Ketanji Brown Jackson is to hear oral arguments Wednesday in the case of federal unions seeking judicial rejection of anti-union executive orders that Trump issued in May.
The litigation challenges Trump’s authority to restrict collective bargaining and the ability of labor leaders to represent not just their members but all employees in a bargaining unit, regardless of whether they pay dues.
- Slash “official time,” which Trump, contrary to statutory language, calls “taxpayer-funded union time.” Official time allows union leaders to represent employees, not just union members, in such areas as filing grievances and discussions of workplace conditions.
- Direct agency officials to forge collective bargaining agreements that restrict the power of labor organizations.
- Seek to fire federal employees faster with changes including the weakening of grievance procedures.
Citing a 1983 case, a brief by the National Treasury Employees Union says, “Congress unquestionably intended to strengthen the position of federal unions and to make the collective bargaining process a more effective instrument of the public interest.”
Through the Federal Service Labor-Management Relations Statute, “Congress consciously, and dramatically, expanded upon the ‘official time’ concept,” the brief argues, and “purposefully left it to labor organizations and agencies to agree upon the other amounts of official time that are ‘reasonable, necessary, and in the public interest.’ ”
Regarding grievances, “Congress commanded that each federal sector collective bargaining agreement include … an expansive negotiated grievance procedure.”
Another brief says Trump’s executive orders “upend Congress’s comprehensive statutory scheme governing the federal employment and labor-management relations.” Trump, it concludes, “has far exceeded his authority” with his executive orders.
Nonetheless, pain has already been inflicted on the unions.
Agencies have cut official time and evicted local labor leaders from union offices in federal buildings that they had long occupied rent-free. The Social Security Administration is a prime example. It “unilaterally implemented extensive changes to the contract that had previously been negotiated,” according to the American Federation of Government Employees (AFGE). The agency also halted union “access to computers, phones, personnel files, and other tools that are vital to effective representation.”
After Trump’s dictates, Defense Department officials nixed parts of an agreement with unions that was executed only two days before his orders were issued.
In response to lawsuits filed by the AFGE and other unions, the Justice Department said the orders fall “well within the President’s authority. … Plaintiffs’ attempts to dress up their core assertions of … Executive action as violations of the separation-of-powers doctrine … must be dismissed.”
The department cites a section of the law that “permits the government to pull a subject out of the bargaining process by issuing a governmentwide rule that creates a regime inconsistent with bargaining.”
“When the President does as he has here,” the brief continues, “set uniform, Government-wide rules on certain topics that preclude agencies from entertaining inconsistent proposals during negotiations — there can be no conflict with the duty to bargain. And for those challenged provisions that are not Government-wide rules, the President has done no more than set goals for agencies to achieve in collective bargaining negotiations, none of which are contrary to the Statute.”
Sorting this out is Jackson’s job.
After her nomination by President Barack Obama, she took the bench in 2013. He considered the Harvard-trained District native as a Supreme Court possibility three years later when Justice Antonin Scalia died.
Jackson also has familiar bipartisan connections.
She is related by marriage to House Speaker Paul D. Ryan (R-Wis.).
“Ryan even testified on Brown’s behalf when she was nominated to the district court … offering his ‘unequivocal’ endorsement of her qualifications in recommending her for the bench,” ABC News reported in 2016. “Our politics may differ, but my praise for Ketanji’s intellect, for her character, for her integrity is unequivocal,” Ryan said at her December 2012 nomination hearing. “She’s an amazing person, and I favorably recommend her consideration.”
In the many pages of legal arguments submitted to her by the unions, federal labor leaders neglected to include one document — a thank-you note.
Nowhere in the unions’ attempt to have the court reject Trump’s anti-union orders is there any show of appreciation for the membership stimulus Trump provides to some unions. His antagonistic labor relations and proposals to cut federal employee compensation have encouraged employees to become dues-paying union members.
The AFGE, the largest federal union, reports a membership increase of nearly 7,000 since Trump took office. The International Federation of Professional and Technical Engineers said its membership has increased by about 10 percent since Trump took office.
“I think people understand that the only way to fight back is to be bigger, better and stronger,” said AFGE President J. David Cox Sr., adding, Trump’s actions are “making us stronger than ever. …Bad management always makes for stronger unions.”