Bipartisan Group of Lawmakers Files Brief Supporting Unions' Legal Challenge Against Workforce EOs

A bipartisan group of current and former lawmakers on Monday filed a brief in support of federal employee unions’ legal challenge against three controversial executive orders that seek to make it easier to fire federal workers and reduce the influence of federal employee unions.

Reps. Elijah Cummings, D-Md., and Peter King, R-N.Y., and former Reps. Bill Clay, D-Mo., and Jim Leach, R-Iowa, filed an amicus brief in support of a lawsuit filed by 15 federal sector unions to prevent the implementation of three executive orders signed by President Trump in May.

Trump’s executive orders seek to shorten the time it takes to fire federal employees by instructing agencies to streamline performance improvement plans at 30 days in most cases and exempting firings and other adverse personnel actions from grievance procedures. They also seek to accelerate collective bargaining agreement negotiations by setting time limits on the process and restricting what topics are eligible for bargaining. And agencies are instructed to cap employees’ use of official time at 25 percent of their work hours and restrict the activities allowed under the practice.

Reaction from labor organizations was swift. Within days, the American Federation of Government Employees and the National Treasury Employees Union had both filed lawsuits to block the orders, and a coalition of 13 smaller unions soon followed suit. Last month, a federal judge consolidated all three lawsuits and scheduled a hearing for July 25.

Clay and Leach were members of the House Post Office and Civil Service Committee when Congress passed the 1978 Civil Service Reform Act. The filing quoted substantially from Clay’s own statements on the House floor when the law was being debated to argue that the executive orders go against congressional intent.

“Before the [Civil Service Reform Act], ‘labor-management relations in the federal sector were governed’ by a program established by executive order, which was ‘management-oriented’ and ‘susceptible to the whims of an incumbent president,’ ” the filing stated, citing Clay in the Congressional Record. “[Through the executive orders], the president seeks to alter the statutory scheme for federal labor-management relations established by Congress in the [Civil Service Reform Act].”

The lawmakers argued that the executive orders seek to impose unilateral conditions on collective bargaining and the use of official time, in direct conflict with Congress’ intent that such issues be decided collaboratively between agencies and labor organizations, one which they argue is sustained even now.

“Congress has not passed any of these bills [that seek to limit official time],” they wrote. “Instead, Congress has maintained the framework established in [the Civil Service Reform Act], under which the amount of official time received . . . and the matters for which it can be used, are subject to negotiation and agreement between the parties.”

The edict to cap the use of official time at 25 percent of an employee’s work hours also inhibits unions’ ability to perform representational duties as required by law, the amicus brief argued.

“The executive orders’ unilateral limits on official time will discourage employees from exercising the labor rights provided to them by Congress, will reduce employees’ availability to engage in representational activities, and will impede labor organizations’ ability to perform their duties under the statute.”