White House: Workforce order cases should be heard by FLRA
- By Chase Gunter
- Apr 04, 2019
The Justice Department argued in a federal appeals court April 4 that a case challenging three executive orders curtailing union activities at federal agencies should have initially gone to the Federal Labor Relations Authority.
The challenges over the violations of civil service law "are precisely the type of legal disputes" that the FLRA is "best positioned" to adjudicate, DOJ attorney Joseph Busa argued. "The unions can get the relief they want from the FLRA."
The Trump administration is appealing a ruling largely invalidating the executive orders made in August 2018.
Busa stated that the FLRA has the authority to issue cease-and-desist orders for agencies in violation of labor practices that could be enforced by the district court but that to file directly with the court was a "direct runaround" of procedure.
In addition to the procedural objection, the government is also making the case the executive orders do not violate civil service statute. Its counsel is arguing that the orders are merely aspirational and that agency negotiators can still bargain in good faith while trying to meet the goals set by the orders. Any labor issues that arise from the orders, the government argued, are jurisdiction of the FLRA.
Following the hearing, Bob Tobias, former president of the National Treasury Employees Union (NTEU) and current director of key executive leadership programs at American University, said he was surprised by the argument that the FLRA had the authority to adjudicate executive orders. "I don't think anybody's ever argued that before," he said.
The three appeals court judges -- Sri Srinivasan, Thomas Griffith and Raymond Randolph -- focused many of their questions to the counsels on the jurisdictional aspect of the case and on what could or could not be adjudicated by the FLRA.
After the arguments, NTEU General Counsel Greg O'Duden said that if the unions took their case to the FLRA to begin with, "somebody should have filed malpractice against us."
"We obviously thought about all of the avenues to take from the beginning when those orders came out, and our view was the FLRA can't really help us because we're dealing with not just an agency decision but with orders coming from the president," O'Duden said. "We were disappointed so much time was spent on that."
Andy Grajales, deputy general counsel for the American Federation of Government Employees, argued that the government "mischaracterized" the unions' lawsuit: they weren't merely challenging one agency's rule; they were challenging the validity of orders issued from the president.
He also pointed out that FLRA may not give the unions the relief they sought -- that it was possible the authority could never even issue a complaint.
O'Duden said, in that case, "it would be a dead-end, in effect."
The White House just recently appointed Catherine Bird to serve as the authority's general counsel. Bird, if confirmed by the Senate, would fill the vacancy open since Trump took office.