Union Lawsuit Accuses Administration of Violating Injunction against Workforce Orders

A federal employee union local in New York on Wednesday filed a lawsuit accusing the Trump administration of violating a court ruling blocking the key provisions of three controversial workforce executive orders.

The American Federation of Government Employees Local 3369, which represents Social Security Administration workers in New York, argued in a complaint in the U.S. District Court for the Southern District of New York that the White House, Social Security Administration and the Federal Impasses Panel effectively used the collective bargaining process to do an end-run around an injunction against the orders.

In May 2018, President Trump issued three executive orders that sought to shorten the length of performance improvement plans to 30 days, exempt adverse personnel actions from grievance proceedings, streamline collective bargaining negotiations, and significantly reduce the number of work hours and activities that union members can spend on official time. U.S. District Judge Ketanji Brown Jackson in August 2018 blocked the key provisions of the orders, finding that they collectively “eviscerated” federal workers’ collective bargaining rights.

In July, a three-judge panel on the U.S. Circuit Court for the D.C. Circuit overturned that decision on jurisdictional grounds, but the injunction remains in place as the court weighs whether to rehear the case with all 11 judges.

The complaint argues that the Social Security Administration’s actions in negotiating a new contract with AFGE constitute a successful effort to “circumvent” the injunction prohibiting the government from implementing the executive orders and claimed that the impasses panel exceeded its authority by acting as an implementation arm of the Trump administration, rather than an independent arbiter of labor-management bargaining disputes.

“Notwithstanding the district court injunction, defendant SSA continued to attempt to impose the ultra vires policies of Defendant Trump’s executive orders on its AFGE-represented employees during the course of collective bargaining and then declared an impasse in bargaining,” the lawsuit states. “At the request of Defendant SSA, Defendant Trump’s recently appointed members of the FSIP then issued its impasse decision and order directing SSA to impose the more severe provisions of the executive orders, provisions that had been declared invalid and ultra vires, in the form of purported contract terms.”

The union pointed to the fact that then-Office of Personnel Management Director Jeff Pon issued guidance in August 2018 ordering agencies to cease implementation of the enjoined executive order provisions. But after Pon was ousted in October, the agency, under the acting leadership of Office of Management and Budget Deputy Director Margaret Weichert, issued new guidance suggesting agencies could continue to pursue the orders’ provisions through bargaining.

Many of those policies, like drastically reducing the amount of official time afforded to union employees and evicting AFGE from federal office space, were imposed as part of the impasses panel’s May decision implementing the AFGE-Social Security contract. The union, which began bargaining over the substance of the contract in July 2018, also accused the Social Security Administration of violating the injunction by requesting the impasses panel intervene in the first place.

“On Dec. 13, 2018, and in accord with Defendant Trump’s then enjoined directive . . . that no agency should engage in bargaining for more than six months, SSA demanded that the Federal Mediation and Conciliation Service mediator release the parties from further bargaining so that the matter could be submitted to defendant FSIP for resolution,” the union alleged.

The union noted that there is no administrative review mechanism for an impasses panel decision. The Federal Labor Relations Authority can only get involved if there is an accusation that an agency has refused to comply with an impasses panel ruling.

The union said that the lawsuit is intended to invalidate the impasses panel’s ruling on the Social Security-AFGE contract negotiations and prevent its implementation by the agency. The legal challenge is the latest in what is now a widespread legal effort to fight the Trump administration’s efforts to reshape collective bargaining in the federal sector.

In addition to the case now pending before the D.C. Circuit, a Service Employees International Union local in western New York has filed its own lawsuit challenging the legality of the executive orders. And AFGE’s national office is challenging the legal authority of the impasses panel on the basis that it does not currently have enough members to issue decisions, and that the method by which presidents appoint panel members without Senate confirmation is unconstitutional.