By William Wiley, September 3, 2018

As we talked about in this space last week, a federal district court judge has recently enjoined (stayed, put on hold) major parts of the three Executive Orders that were issued by the White House back in May. The EOs were intended in large part to curb the accomplishments of unions in the civil service. The court’s order declared the EOs to be illegal primarily because by setting out bargaining objectives, the President has effectively foreclosed agency officials from negotiating for anything other than those objectives. The judge concluded that the President’s setting of bargaining objectives was an impermissible interference with a union’s rights in negotiating with management. The court reasoned that by definition collective bargaining requires the parties to be “flexible,” to bargain in a “give and take manner,” and to work toward a “mutually acceptable resolution.”

Well, where did this new definition of collective bargaining come from?

Here’s how the law has defined collective bargaining in the federal sector for over 40 years:

The performance of the mutual obligation of the representative of an agency and the exclusive representative of employees in an appropriate unit in the agency to meet at reasonable times and to consult and bargain in a good-faith effort to reach agreement with respect to the conditions of employment affecting such employees and to execute, if requested by either party, a written document incorporating any collective bargaining agreement reached, but the obligation referred to in this paragraph does not compel either party to agree to a proposal or to make a concession. 5 USC 7103(a)(12)

Somebody show me the word “flexible” in here. Where does the law require that the negotiators have to both “give and take”? The law says that there should be “effort to reach agreement.” Where does the judge find the definition of “agreement” to mean “mutually acceptable” agreement?

Consider the “mutually acceptable” tweak for a moment. If you tell me I have to sell my used car for a “mutually acceptable” price, I cannot stand firm on my asking price and I have to keep making concessions until the buyer says, “I’ll take it.” Maybe that’s a good way to negotiate if you’re having a garage sale because in reality, you just want the junk out of your garage, and you’ll take any offer just to get someone to haul it away. In comparison, selling your old Porsche is not a yard sale. You have a firm price and it can sit in that garage until your kids have to deal with it during the probate of your will for all you care. You are not letting it go for less than what you consider to be its value.

Collective bargaining in the federal government is not a garage sale. If the union demands free office space in a proposal, management should be free to just say no. Nothing in the law or derived case law says that an agency engages in bad faith bargaining by refusing to concede things to the union, or that management negotiators have to be “flexible” and engage in “give and take.” The court effectively is mandating that if management (or, I guess the logic would hold true for the union, as well) is inflexible and refuses to make a concession, it is violating the law. Well, the law says very specifically that collective bargaining “does not compel either party to agree to a proposal or to make a concession.” The very words “flexibility” and “give and take” imply the making of concessions. The judge in this case has misapplied the law.

The court’s decision concludes that the EOs impermissibly interfere with the union’s rights to collective bargaining. That’s equivalent to saying that the EOs require bad faith bargaining. If you know your FLRA case law, you know that bad faith bargaining occurs, inter alia, when a party refuses to meet, refuses to consider the views of the other party, or refuses to participate in the impasse process. There has never been a single Authority decision that says a party engages in bad faith bargaining by refusing to make a concession, by being inflexible, or by abstaining from giving and taking.

Had the White House issued an EO that directed the Federal Service Impasses Panel how to rule on impasses brought before it, then, in our humble opinion here at FELTG, that would be an impermissible interference with the union’s rights to collective bargaining. The EOs don’t do that. Instead, they lay out objectives to be attained within the framework of collective bargaining consistent with the law. They acknowledge the collective bargaining process and do not attempt to interfere with the conclusion of that process before FSIP, if necessary.

The court’s decision effectively bars the President from providing guidance to agency heads regarding negotiation objectives to be attained through collective bargaining. However, 5 USC 301, read in consideration of 5 USC 305, makes the President, through subordinate agency heads, responsible for “determining the degree of efficiency and economy in the operation of the agency’s activities.” One would think that this statutory scheme allows the President to exercise this responsibility by providing direction and guidance to agency heads regarding the significant adverse effects to governmental efficiency and economy that can result from poorly negotiated collective bargaining agreements. Apparently, this judge does not think so.

There may be some very smart people who conclude that the EOs go too far, that the objectives that the White House has laid out are not good for America and are unfair to the unions. Heck, we might even believe that here at FELTG (although we try not to think too deeply these days). It’s just fine to disagree with the EOs as a matter of policy. However, that does not make the EOs illegal. The judge in this case seems to be saying that because the White House has declared certain policy objectives that the union will not like, the EOs violate law. No, that’s a policy conclusion. Courts should be making legal calls, not policy calls. Wiley@FELTG.com

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