The Trump administration is being sued by the largest union representing federal workers, which claims a new executive order that restricts union representation during work hours is unlawful and violates the First Amendment rights of its members.
The executive order was among three that Trump issued last Friday that rolled back union protections and the latest anti-union measures imposed by the administration. The lawsuit was filed by the American Federation of Government Employees (AFGE) at U.S. District Court in Washington D.C. on Wednesday.
“These changes will effectively deny thousands upon thousands of federal employees union representation,” AFGE General Counsel David Borer told ThinkProgress on Thursday. “It’s all part of an effort to destroy the unions and shrink the size of the government, in the words of some Republicans, down to the size of where you can drown it in a bathtub.”
Among a number of limitations, the “Official Time” executive order bars union representatives from spending more than 25 percent of their work hours providing representation for employees and, in the aggregate, no more than one hour per employee in their bargaining unit per year, Borer said. In other words, if there are 1,000 employees in a unit, a representative cannot spend more than 1,000 hours representing employees, he said.
Allowing union representation during work hours is common practice in the private sector and unions are required by law to represent all employees, both paying members and non-members, said Borer. Historically, the rationale for allowing union representatives to use “official time” to represent employees is because the law requires the union to provide the free service to non-members that don’t pay dues, he said.
In its lawsuit, the union argues the executive order violates the First Amendment because it does not provide valid justification for the regulations and singles out labor organizations and their representatives for “disparate, negative treatment as compared to individuals.” Because of this, it “restrains and retaliates” against the union and its employee representatives for exercising their rights to expressive association.
It also violates the Separation of Powers in the Constitution because it attempts to give agencies unilateral authority to determine whether a particular amount of official time is reasonable, necessary, and in the public interest, according to the suit.
Congress instructed the executive branch to interpret the law “in a manner consistent with the requirements of an effective and efficient government,” the White House stated in its “official time” executive order. “To that end, agencies should ensure that taxpayer-funded union time is used efficiently and authorized in amounts that are reasonable, necessary, and in the public interest. Federal employees should spend the clear majority of their duty hours working for the public.”
One of the other two executive orders reduces federal employees’ right to due process and gets rid of various programs, including a performance improvement program, which allows managers to work with struggling employees to improve instead of immediately firing them.
“It’s a very draconian throwback to the 1940s in its approach,” Borer said. “You invest in their training and learning of the job and then you turn around and throw that all away.”
The other executive order attempts to gut the collective bargaining process by dictating to agencies the amount of time they can spend bargaining and narrowed the list of subjects that agencies are permitted to negotiate, Borer said. By requiring agencies to negotiate a certain amount of days and certain topics, Borer expects the executive order will lead to illegal “bad faith bargaining.”
The union is still reviewing the other two executive orders and has not yet determined whether it will challenge them in court.
The White House did not immediately respond to requests for comment on Thursday.
The executive orders are in line with other actions taken by the Trump administration to undermine unions and the financial welfare of federal employees.
The administration wants to slash federal retirement benefits by $143.5 billion over the next 10 years, and in its 2019 budget proposal claimed that union contracts significantly impacts agency performance and employee satisfaction, as Joe Davidson of the Washington Post reported.
In March, the Education Department essentially gutted most of the union protections and rights of its nearly 4,000 employees, an edict that was never actually negotiated or agreed upon by members of the union. The AFGE has since filed an unfair labor practice charge with the Federal Labor Relations Authority.