In Historic Victory, Judge Finds Key Provisions of Executive Orders Unlawful

Press Release August 25, 2018

Washington, D.C.  – The core elements of the president’s anti-employee executive orders were struck down by a federal judge late last night, a historic legal victory for the National Treasury Employees Union and the federal employees who stood to lose their rights and benefits.

“The judge rightly found that the president is not above the law and cannot, through these blatantly anti-union and anti-worker executive orders, eviscerate employee rights and undermine the collective bargaining process established by Congress,” NTEU National President Tony Reardon said. “Today’s ruling is a resounding victory for all who want a fair and effective civil service.”

U.S. District Judge Ketanji Brown Jackson agreed with NTEU’s arguments that key parts of the May 25 orders issued by President Trump are unlawful and cannot be enforced.

As Judge Jackson explained, “Congress undertook to guarantee federal employees the statutory right to engage in good-faith collective bargaining,” which “safeguards the public interest.” 

“[I]t is clear to this Court that various aspects of the Orders that the Unions seek to challenge in this case violate the statutorily protected duty to bargain,” the judge wrote in her 122-page opinion.

NTEU in June filed a lawsuit to block the orders because they violate established laws on labor-management relations by strictly limiting the ability to represent employees, weakening due process, and restricting collective bargaining at government agencies. 

NTEU’s lawsuit was combined with similar cases filed by other federal sector unions and the judge heard four hours of arguments on July 25.

In response to NTEU’s suit, the court specifically declared unlawful and enjoined the following EO provisions:

  • The imposition of a 25 percent cap on the use of official time;

  • The prohibition against their right to petition and communicate with Congress;

  • The ban on the use of official time by union representatives to prepare and present grievances;

  • The one-hour per bargaining unit employee formula to be applied to set an aggregate cap on the use of official time;

  • The limitations placed on unions’ use of agency facilities, such as office space and computers;

  • The exclusion of challenges to performance ratings and incentive pay from the scope of the negotiated grievance procedure;

  • The limitation of performance improvement periods (PIPs) to 30 days, with agencies alone having the discretion to apply longer periods;

  • The direction to agencies to press for the exclusion of removals from the scope of the negotiated grievance procedure; and

  • The prohibition against bargaining over the “permissive” subjects described in 5 U.S.C. 7106(b)(1).

 “These provisions were flatly inconsistent with the civil service law established by Congress,” Reardon said.  “Congress meant for unions and agencies to bargain over how official time and grievance procedures can best be used to help employees and agencies work better together.  It was wrong for the President, through unilateral, executive fiat, to ban bargaining over such matters.”

NTEU’s suit had also challenged an additional two provisions. Those provisions involve the concepts of progressive discipline and the consistency of penalties with those imposed on others.  

NTEU represents 150,000 employees at 33 federal agencies and departments.