Washington D.C. – Several sections of the president’s 2018 executive orders restricting federal employee unions violate labor-management law, according to a neutral arbitrator who agreed with NTEU in a case against the U.S. Patent and Trademark Office.
This is believed to be the first time that portions of the executive orders have been found by an arbitrator to be in violation of the law.
“The issue is whether the President can by EO (executive order) undermine Congress’s specific statutory scheme for how collective bargaining should be conducted in the federal sector. This Arbitrator’s answer is that he cannot. To answer otherwise would allow the President to effectively amend acts of Congress,” according to the Monday decision.
A federal judge in 2018 ruled that key aspects of the executive orders were invalid because they violated the Federal Service Labor-Management Relations Statute. But an appeals court the following year said the unions had to first take their complaints through the statute’s administrative process, which leads to review by the Federal Labor Relations Authority and then the court of appeals.
The grievance against PTO, where NTEU represents trademark attorneys and examiners, was filed after the agency started implementing the executive orders by adding new restrictions and barriers to union work. After the agency denied the grievance, NTEU took the issue to arbitration, producing this week’s victory.
“We’ve said all along that the president’s executive orders were an illegal assault on the collective bargaining rights of federal employees, and now we have a second ruling agreeing with us,” said NTEU National President Tony Reardon. “The White House should know that we have a slew of these grievances pending in multiple agencies, all designed to prove, once and for all, that he can’t run roughshod over federal employees and labor law.”
In the PTO case, the arbitrator found that the agency committed unfair labor practices by following provisions in Executive Orders No. 13836 and No. 13837 regarding the use of official time and bargaining on permissive subjects. Specifically, the arbitrator held that the orders’ 25 percent cap on official time, prohibition on official time for grievances, advance-approval requirement for official time, and prohibition on bargaining over permissive topics are contrary to the federal labor statute. By extension, PTO committed unfair labor practices by implementing them. The arbitrator further agreed with NTEU that PTO committed an unfair labor practice by unilaterally implementing the executive orders before the parties’ agreement expired in January 2020.
“A federal agency cannot just ignore an existing contract, skip the necessary bargaining and impose strict new limits on the union’s ability to represent employees,” Reardon said. “We think this is the beginning of an extensive but necessary process to chip away, piece by piece, at these anti-union, anti-employee executive orders, and NTEU is in it for the long haul.”
PTO can file exceptions to the arbitrator’s decision with the Federal Labor Relations Authority, whose decision can be appealed in court.
NTEU represents about 150,000 employees at 33 federal agencies and departments.