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Arbitrator Finds Trump Workforce Orders ‘Violate’ The Law - Independent Arbitrator Rules He ‘Cannot Reduce The Scope Of Bargaining Between An Agency And A Labor Group’

Published Friday, October 9, 2020
by Erich Wagner/
Arbitrator Finds Trump Workforce Orders ‘Violate’ The Law - Independent Arbitrator Rules He ‘Cannot Reduce The Scope Of Bargaining Between An Agency And A Labor Group’

(WASHINGTON, D.C.) - An independent arbitrator has ruled that a series of 2018 Executive Orders seeking to reduce the role of Unions at Federal Agencies violate Federal Labor Law, in the first case testing an Administrative Review Process since a Federal Appellate Court ordered the dismissal of a legal challenge against the orders on jurisdictional grounds last year.

The three Executive Orders, signed by Republican President Donald Trump in May 2018, sought to make it easier to fire Federal Employees, streamline Collective Bargaining Negotiations and reduce the scope of topics over which agencies may bargain.

They also significantly curtailed Union Officials’ ability to use official time.

Unions sued to block the orders and although they secured an injunction from a U.S. District Court Judge, the U.S. Court of Appeals for the D.C. Circuit overruled that decision on jurisdictional grounds.

The Appellate Court found that in order to challenge the validity of the Executive Orders, Labor Groups must first seek administrative relief through the Federal Labor Relations Authority (FLRA) or an arbitrated grievance.

Arbitrator William Persina gave Unions their first victory in that process.

Persina found that the Executive Orders unlawfully seek to subvert the statute governing Federal Labor-Management Relations, and that the U.S. Patent and Trademark Office engaged in Unfair Labor Practices against the National Treasury Employees Union (NTEU) by implementing the orders.

In much of his decision, Persina found that the Executive Orders unlawfully set limits on how agencies can negotiate, contrary to Congress' intent when it passed the 1978 Civil Service Reform Act, which set up the modern Federal Sector Labor-Management Relations System.

On the provision that Union Officials may only spend a maximum of 25% of their work hours on official time, although agencies have the latitude to negotiate how much official time Employees can use, limits cannot be negotiated if they are dictated “by fiat,” the arbitrator found.

“The agency presumably could engage in negotiations with the Union to create a bank of official time hours available for Union Representatives in a fiscal year,” Persina wrote. “But again, the point is that under the Statute, such an arrangement must result from negotiations.  It cannot be imposed by EO (Executive Order).”

That was a common theme throughout Persina’s analysis of the Executive Orders - although agencies have the right to seek to reduce the scope of bargaining, those agencies must come to that conclusion independently and negotiate with Unions toward that end - the President cannot require those changes and make them nonnegotiable via Executive Order.

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