Fedweek

WASHINGTON, DC: E. Barrett Prettyman Federal Courthouse located at 333 Constitution Avenue in Washington, DC

A federal district court has barred implementation of main parts of all three of President Trump’s recent executive orders on federal disciplinary and union-related policies, although leaving in place other provisions.

In her decision, a judge in the District of Columbia held that while Presidents have authority to issue orders on federal personnel policy within their discretion, in each of the three Trump overstepped into areas that have been pre-determined by law.

Update: OPM has issued a memo saying that provisions of the EOs that were enjoined by the court should be considered rescinded, while OPM guidance relating to the still effective provisions remains in place.

Specifically, she found that the “many of the challenged provisions of the orders at issue here effectively reduce the scope of the right to bargain collectively as Congress has crafted it, or impair the ability of agency officials to bargain in good faith as Congress has directed.”

She further held that contrary to the administration’s arguments, the policy changes were not mere guidance left to the discretion of agency officials. Nor did the group of unions behind the suit have to go first to the FLRA as the administration argued, since that agency does not have authority to rule on the “validity of executive orders that threaten” the collective bargaining rights in law, she wrote.

The judge specifically invalidated provisions to:

* set time frames for negotiating ground rules and then for reaching a contract, require agencies to invoke mediation if the issues are not resolved within those limits, and invoke the Federal Service Impasses Panel to resolve any remaining disputes afterward;

* bar agencies from bargaining over matters that are negotiable at management’s discretion under labor-management law, which involve matters such as how many and which types of employees to assign to a task and how it is carried out;

* limit to 30 days “performance improvement periods” before taking disciplinary action on performance grounds, and to bar agencies from agreeing to longer periods in contracts with unions;

* discontinue the long-standing practice of providing unions with free use of office space and agency equipment;

* instruct agencies to generally agree in bargaining to no more than one hour of official time per bargaining unit employee annually, bar employees who use official time from being in that status more than a quarter of working hours, require management approval of official time, and bar use of official time to pursue grievances of disciplinary matters on behalf of other employees; and

* exclude from negotiated grievance procedures challenges to removals for either poor performance or misconduct, the assignment of performance ratings, or the award of any form of monetary incentive.