Unions Accuse Administration of Circumventing Court Order Through Bargaining

Although the Trump administration has begun to comply with an August court order that invalidated the key provisions of three controversial executive orders, representatives of federal employee unions say that compliance has not extended to collective bargaining negotiations at key agencies and departments.

Union officials say in interactions with the Health and Human Services and Veterans Affairs departments, as well as the Environmental Protection Agency, management continues to press for provisions strikingly similar to the priorities outlined in three executive orders signed by President Trump in May but struck down in federal court last month.

Last week, officials at the Centers for Disease Control and Prevention, its parent department HHS, and American Federation of Government Employees Local 2883 met in Atlanta to resume negotiations on a collective bargaining agreement. Pam Gilbertz, president of the union local, said negotiations had begun in earnest in October 2017, but were twice delayed due to negotiator health issues. In July, both sides briefly returned to the table, but she said management unsuccessfully tried to renegotiate ground rules.

“They said it was because of the executive orders that were implemented,” Gilbertz said. “My response to that was we don’t agree to reopen our ground rules, and you cannot force us to reopen our ground rule negotiations, and that there was nothing in the EOs that would require a change anyway.”

Gilbertz said that the union encouraged CDC to hold off on further negotiations until the court resolved the challenge to Trump’s executive orders, which sought to make it easier to fire federal employees, set time limits on collective bargaining negotiations, and severely curtail both the amount of official time available to union employees and the scope of issues covered by bargaining.

But although the key portions of those executive orders were invalidated in a court order issued last month by U.S. District Court Judge Ketanji Brown Jackson, Gilbertz said agency officials continued to insist on a contract that largely mirrors provisions of the executive orders. The proposal, which includes language that HHS “makes these management proposals independent of any requirement in any executive order,” seeks to eliminate 37 of the 47 articles in the existing collective bargaining agreement, including telework, alternative work schedules, grievances and official time.

“They are proposing to completely take away our ability to use official time to represent employees and make us use leave without pay to represent employees altogether, Gilbertz said. “How ridiculous is that? How are we supposed to represent employees if we have to take leave without pay?" She said that while there are agency managers who work full time on labor-management issues, none of the union reps has that luxury. 

"We all have agency jobs in addition to our union role,” she said.

The National Treasury Employees Union has reported similar experiences with HHS leadership. In July, while still following the provisions of the executive orders, the department declared an impasse in its negotiation with NTEU. But since the orders were partially rescinded, it has continued to seek intervention from the Federal Services Impasse Panel, a move that has drawn outcry from the union and lawmakers, who have described it as bad-faith “surface” bargaining.

HHS has repeatedly issued statements to Government Executive denying that their bargaining tactics are related to the executive orders. But in the case of the NTEU negotiations, the department informed the union that it must come to the bargaining table on May 25, the same day that Trump issued the orders.

“HHS’ proposals were based solely on HHS’ discretion, not on the executive orders,” a spokesperson wrote.

At the Environmental Protection Agency, AFGE Local 704 had completed negotiations months ago, but has been stuck in a holding pattern. Local President Mike Mikulka said that although the contract has been ratified by the union, the agency has thus far refused to implement it, instead pushing for a full renegotiation.

“We ratified the contract, and the EPA took no action to review it, so after 30 days it should have been in effect,” Mikulka said. “But they weren’t satisfied, because they didn’t get the provisions on office space and official time, so they sent us a really unreasonable proposal on ground rules for the full contract.”

Since the rescission of the executive orders, Mikulka said they have not seen any change in position from management.

“The latest thing is that they want to open up the whole contract, but according to the ground rules, you can’t do that,” he said. “So that’s still where things stand.”

And at the Veterans Affairs Department, National Federation of Federal Employees negotiators reported that even after the Office of Personnel Management instructed agencies to comply “fully” with the court order, management continued to stonewall in contract negotiations. In that negotiation, a member of the management’s negotiation team also was caught illegally taping private union deliberations.

“[The management negotiator] made it clear in both actions and in her words that they would not agree to anything that is not already required of them by statute,” said NFFE Associate General Counsel Suzanne Summerlin earlier this month. “If that’s the case, what is the point of a contract, which at basic essence is a private agreement between two parties to create a series of obligations and rights beyond what the law says you have to do? This is just bad faith bargaining.”

On Thursday, House Oversight and Government Reform Committee Ranking Member Elijah Cummings, D-Md., sent a letter to Chairman Trey Gowdy, R-S.C., demanding that he issue a subpoena for Office of Personnel Management Director Jeff Pon to testify at a deposition on how OPM is working to make agencies comply with Jackson’s court order.

Last month, Cummings requested a briefing on the issue, but Pon declined, citing “pending and ongoing litigation.” The Trump administration has not yet filed an appeal in the case.

“Under the court’s order, federal agencies are prohibited from implementing the invalidated provisions of the executive orders,” Cummings wrote. “To date, the Trump administration has not filed an appeal or a motion to stay the court’s decision. We are not requesting any information about the agency’s litigation strategy—we are asking for basic information about how the Trump administration is complying with the law.”

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