Trump: Workforce Orders Do Not Apply to Union Contracts Signed During Injunction

President Trump last week clarified that union contracts implemented during an injunction on provisions in three controversial workforce executive orders will remain valid even after a federal appellate court recently allowed the orders to go back into effect.

On Oct. 2, the U.S. Court of Appeals for the D.C. Circuit lifted the injunction blocking the key provisions of the orders, which had been in place since August 2018. The executive orders, signed in May 2018, seek to standardize the length of performance improvement plans at 30 days, exempt adverse personnel actions from grievance proceedings, set six-month deadlines for collective bargaining negotiations, and greatly reduce the number of work hours and activities union members can spend on official time.

The key provisions of the orders initially were blocked by U.S. District Court Judge Ketanji Brown Jackson, who wrote that taken together, they “eviscerated” the right to bargain collectively in the federal sector. But in July, a three-judge panel on the D.C. Circuit overturned that decision on jurisdictional grounds, finding that unions must channel their complaints through the Federal Labor Relations Authority before seeking redress through the federal courts.

Trump last week issued a memo to agency heads effectively amending the executive orders to ensure that agencies would not be considered out of compliance with the orders if they had completed new collective bargaining agreements with unions while the provisions of the orders were enjoined.

“Agencies shall adhere to the terms of collective bargaining agreements executed while the injunction was in effect,” he wrote. “[However], where, between the date of the executive orders and the date of the Court of Appeal’s mandate, the parties to collective bargaining negotiations have executed an agreement to incorporate into a new collective bargaining agreement specific terms prohibited by the executive orders, an agency may execute the new collective bargaining agreement containing such terms, and terms ancillary to those specific terms, notwithstanding the executive orders.”

Meanwhile, agencies still in the midst of contract negotiations must abide by the orders, and ensure that whatever collective bargaining agreement they reach implements the executive orders’ provisions.

“Agencies that remain engaged in collective-bargaining negotiations, to the extent consistent with law, shall comply with the terms of the executive orders,” Trump wrote.

Unions have said they will continue to fight the implementation of the executive orders, although they have not announced whether that means going through the FLRA, which still lacks a general counsel, to issue unfair labor practice complaints, or appealing to the Supreme Court.

Congress also may still weigh in to block the orders’ implementation via collective bargaining agreements. Among the issues outstanding between the House and Senate versions of a fiscal 2020 appropriations bill is a House-passed provision that would block from being implemented all union contracts that are not “voluntarily agreed to” by all parties. Originally crafted to block a slew of generally pro-management decisions by the Federal Service Impasses Panel, the language could effectively stop agencies from implementing the provisions of the executive orders as well.