On July 16, the U.S. Court of Appeals for the DC Circuit overturned, on jurisdictional grounds, a lower court ruling blocking the implementation of three controversial Trump Workforce Executive Orders taking aim at federal employee unions.
In a letter to Congress, Metal Trades Department President James Hart asked Senators and Representatives to take legislative action to block and reverse these destructive Executive Orders.
See the text of the full letter below:
Dear House / Senate Member
The U.S. Court of Appeals for the D.C. Circuit overturned, on jurisdictional grounds, a lower court ruling blocking the implementation of three controversial Trump Workforce Executive Orders taking aim at federal employee unions.
In its ruling issued on July 16, 2019, the three-judge panel stated in overruling the lower court decision that the suit lacked judicial jurisdiction and that federal employees and their representatives can only seek relief from the court after going through the administrative process, namely the Federal Labor Relations Authority. This decision condemns the federal workforce to a fate dictating that workers must sit back and watch their rights being trampled upon by overzealous agency management personnel, as unions are now forced to address contract and statute violations by filing Unfair Labor Practice charges with the FLRA, an agency filled with partisan appointees, devoid of a general counsel, and plagued with huge case backlogs.
The appeals court overturned an August 2018-decision from the District of Columbia federal district court, which invalidated nine key provisions of the President’s three Federal Workforce Executive Orders, 13836, 13837 and 13838, that conflicted with the original intent of Congress when passing the Civil Service Reform Act and Federal Labor-Management Relations Statute in 1978.
Those provisions include:
- The imposition of a 25% cap on the use of official time,
- The prohibition against employees’ 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 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 “permissive” subjects.
The Metal Trades Department, AFL-CIO, and its 17 International Union Affiliates seeks your support in pursuing legislative remedies to block and reverse these destructive executive orders. The days of disrespecting the federal workforce by this Administration must come to an end.
In a letter to Representatives Cummings, Neal, Davis and Fitzpatrick, the Federal Workers Alliance — of which the Metal Trades Department is a member — expressed its support for the ALJ Competitive Service Restoration Act. The legislation was introduced in response to President Trump’s Executive Order 13843 that removes federal Administrative Law Judges (ALJs) from the competitive service to excepted service.
The FWA, which collectively represents 300,000 federal workers, explains that the EO “allows political appointees at agencies throughout the federal government to pick and choose inexperienced political friends to serve as ALJs who could move forward the partisan agenda of whoever may be occupying the White House.”
Outlining the dangers of not addressing the EO, the FWA went on to ask all House members to support the legislation.
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WASHINGTON, D.C.—The Metal Trades Department, AFL-CIO applauds the U.S. District Court of the District of Columbia’s ruling, issued late Friday, on the legality of Trump’s three Executive Orders gutting collective bargaining for federal workers.
Just before Memorial Day, Donald Trump signed three executive orders affecting more than 300,000 federal workers right to union representation in their workplace. The Metal Trades Department, in its alliance with a dozen other labor organizations—the Federal Workers Alliance (FWA)—then filed a lawsuit in the U.S. District Court for the District of Columbia to block implementation of the orders, challenging their legality.
The court ruling, in part, declared that President Trump’s Executive Orders, to the extent that they conflict with the will of Congress, are invalid.
“All workers deserve the right to union representation. This most recent attack by the Trump Administration is just another example of those in power attempting to usurp workers’ rights. Thankfully, the courts saw the attacks for what they were, an illegal attempt to use Presidential powers to nullify existing laws,” said James Hart, president of the Metal Trades Department.
Judge Ketanji Brown Jackson’s decision enjoined the President’s subordinates from implementing or enacting the following provisions from the Executive Orders:
EO #13836 (restrictions on collective bargaining order), ordered invalid:
5(a) setting timelines for bargaining
5(c) revoking LM partnerships
6 removing permissive subjects from bargaining
EO #13837 (use of official time), ordered invalid:
3(a) official time limits per bargaining unit
4(a) lobbying on official time
4(b) advance written notice for official time
EO #13389 (removal procedures)
3 negotiating grievance procedures out of CBAs
4(a) removing grievable subjects like performance reviews
4(c) 30 days to get into compliance (like PIPs)
# # #
The Metal Trades Department is a trade department of the AFL-CIO. It was chartered in 1908 to coordinate negotiating, organizing and legislative efforts of affiliated metalworking and related crafts and trade unions. Seventeen national and international unions are affiliated with the MTD today. More than 100,000 workers in private industry and federal establishments work under contracts negotiated by MTD Councils. Workers retain membership in their own trade unions.
The Federal Workers Alliance is a coalition of 13 labor unions that represent more than 300,000 federal government workers employed in hundreds of occupations ranging from teachers in Department of Defense Dependent Schools, to Immigration Judges, to NASA rocket scientists, to welders at naval shipyards
On July 16 the Federal Workers Alliance (FWA), of which the Metal Trades Department is a member, sent a letter in support of Representative Scott’s amendment to defund the implementation of President Trump’s latest Executive Order that moves federal agency ALJs from the competitive service to the excepted service.
The FWA thanked Rep. Scott for his amendment and urged the Rules Committee to make it in order, and all House members to support it.
See the text of the full letter below:
July 16, 2018
Hon. Robert Scott, Ranking Member
Education & Workforce Committee
U.S. House of Representatives
2101 Rayburn House Office Building
Washington, DC 20515
Dear Ranking Member Scott:
On behalf of the Federal Workers Alliance (FWA), representing upwards of 300,000 workers from across the federal government, we are writing in support of your amendment to defund the implementation of President Trump’s latest Executive Order that moves federal agency ALJs from the competitive service to the excepted service. This latest Executive Order is intended to pack the courts with political friends who will move forward the partisan agenda of whoever may be occupying the White House.
The Trump Administration is inaccurately claiming that this Executive Order is needed to address the recent Supreme Court decision, Lucia v SEC. However, the decision in that case was very narrowly tailored to apply only to the SEC, not other government agencies such as SSA, where over 80% of our federal ALJs are working. Yet, the Administration took the opportunity of the Lucia ruling to all but do away with Administrative Procedures Act (APA) protections that guarantee ALJ independent decisions, and thereby due process protections for the American public.
The Administration has also said that this Executive Order is necessary to protect ALJs, which is also incorrect. Instead it will allow for political appointees at government agencies to award ALJ jobs to ideologically aligned friends and supporters who will do their bidding for them. What exactly will this mean? The rebirth of the Spoils System where disability benefit determinations, Medicaid determinations, and worker safety and pay complaints, among others, will be decided based on ideology, and not the law. As the independent, impartial adjudicator goes away, so will the due process protections for the American public.
The Administration is contending that even though ALJs are being moved from the competitive service to the excepted service, they will nonetheless continue to enjoy Title V civil service protections. While this may be true on paper, the reality tells a difference story, as ‘excepted’ employees can be put on probation/trial work periods for up to two years, or more. During this time an ALJ has no worker protections, including through the Merit Systems Protection Board
(MSPB), and can be fired for no reason at all. Furthermore, if ALJs can be hired based on politics, all it takes is another stroke of a pen to ensure they can be fired the exact same way.
By providing a path around Title V protections, political hires will take precedent over competitive hires and consequently, when caseload declines, subject the “competitive” ALJs to a Reduction in Force (RIF). The Administration made clear in its May 25th anti-labor EO’s that the concept of seniority will no longer apply in any collective bargaining agreement, so a RIF can be used to pick and choose the ALJs the agency wants to remove. Who will be first: Union Officials? Judges who award benefits too often? Judges who do their jobs with integrity and won’t be cowed by abusive and unethical management directives?
Lastly, the Administration is contending that the EO will only apply to newly hired ALJs. Here again, that is misleading and inaccurate, as James Sherk, special assistant to the president for domestic policy, was quoted in a July 10th Government Executive article saying that, “agency heads can ratify existing judges under the new rules…”.
Make no mistake about it, this Executive Order opens the doors wide for a total politicization of the adjudicatory process. Regardless of political party or ideology, lawmakers across the political spectrum should be alarmed at the impact that this Executive Order will have on the due process protections for the American public.
FWA thanks you for your amendment and urges the Rules Committee to make it in order, and all House members to support it. If you or your staff have any questions, please contact FWA Legislative Chair Matt Biggs at (202) 239-4880.
American Federation of State, County, and Municipal Employees (AFSCME)
American Federation of Teachers, AFL-CIO (AFT)
Federal Education Association/National Education Association (FEA/NEA)
International Association of Fire Fighters (IAFF)
International Association of Machinists and Aerospace Workers (IAMAW)
International Brotherhood of Teamsters (IBT)
International Brotherhood of Electrical Workers (IBEW)
International Federation of Professional and Technical Engineers (IFPTE)
International Organization of Masters, Mates and Pilots (MM&P)
Marine Engineers’ Beneficial Association (MEBA)
Metal Trades Department, AFL-CIO (MTD)
National Association of Government Employees, SEIU (NAGE)
National Federation of Federal Employees (NFFE)
National Weather Service Employees Organization (NWSEO)
Overseas Federation of Teachers, AFT, AFL-CIO
Professional Aviation Safety Specialists (PASS)
Patent Office Professional Association (POPA)
Seafarers International Union of North America (SIU)
Service Employees International Union (SEIU)
Sheet Metal, Air, Rail and Transportation Workers (SMART)
SPORT Air Traffic Controllers Organization (SATCO)
United Power Trades Organization (UPTO)
In a two page letter addressed to President Trump, ranking members of the Senate, John Tester, Claire McCaskill, and Heidi Heitkamp blasted the May 25 Executive Orders as undermining “federal employees’ legal right to fair representation in the workplace.”
The letter says that the EOs will have “a detrimental impact on the morale of the workforce, do not promote efficiency of service, and are not in the public interest.”