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Volume 48 Preview
You can access the full article of the below abstract by James Sherk here.
The Federal Service Labor-Management Relations Statute (the Statute) gives Federal unions and private arbitrators considerable authority over the executive branch. Unions can force presidents to adhere to collective bargaining agreements negotiated by their predecessors that comprehensively govern workforce management procedures. They can also force agencies to postpone contractually permissible changes until midterm bargaining concludes—something that can take a year or more. Unions can further veto some proposed contract articles. This represents considerable executive power; legally, union contracts take precedence over agency regulations. Grievance arbitrators also possess unreviewable authority to overturn dismissals and demotions. For example, an arbitrator forced the Department of Veterans Affairs (VA) to reinstate an employee fired after being arrested for and pleading guilty to possessing methamphetamine with the intent to deliver. No one in the President’s chain of command believed this employee belonged in the agency—or could countermand the order to reinstate him.
To date courts have not examined the constitutionality of the Statute; no President has challenged it in court. That could change. Federal unions aggressively used their powers to block presidential priorities under both the Trump and Biden Administrations. They largely neutralized the implementation of the VA Accountability Act, forcing VA to offer backpay and in most cases reinstatement to over 4,000 employees dismissed for poor performance or misconduct. This will likely cost taxpayers hundreds of millions of dollars. The Biden Administration prioritized returning federal employees to in-person work after the COVID pandemic; unions largely blocked those directives. In the final months of its term the Biden Administration also approved a series of collective bargaining agreements that will last through 2028 or later. Many of these agreements are expressly intended to prevent the re-elected President Trump from implementing his agenda. EPA’s largest union has boasted that “no matter who sits in the Oval Office” their new CBA will “ensure that the Agency can fulfill its mission to address climate change.” This significant union interference with presidential priorities may lead to challenges to the Statute’s constitutionality.
The Statute is highly vulnerable to such challenges. The power it gives unions and arbitrators is incompatible with modern separations of power jurisprudence. The Supreme Court has repeatedly emphasized that the constitution gives the President ultimate authority over and responsibility for the executive branch. Letting unions veto Presidential management policies is inconsistent with how the Court has interpreted Article II’s vesting and Take Care clauses. So is giving third-party arbitrators unreviewable authority over agency removals and demotions. The Statute likely also violates the private non-delegation doctrine. It straightforwardly transfers significant control over agency operations to unions and arbitrators, without further supervision or control by executive officers. Indeed, the Statute gives union officers and arbitrators so much authority they are likely Officers of the United States subject to the Appointments Clause—another constitutional violation.
These concerns can be addressed without striking down federal-sector collective bargaining in toto. The canon of constitutional avoidance calls for adopting permissible interpretations of laws that avoid serious constitutional concerns. The Statute can and should be construed to allow the President to terminate problematic contract provisions and to require that duly appointed principal officers arbitrate federal grievances. Administrative decisions allowing unions to veto agency bargaining proposals are unmoored from the text of the Statute and should be set aside. Similarly, the Federal Labor Relations Authority can and should limit the length of time unions may unilaterally delay operational changes. These solutions would preserve the statute’s core functions while respecting constitutional boundaries. The Constitution allows Congress to give unions a voice in agency operations, but unions cannot control how the President wields the executive power.
Volume 47 – Issue 3
Fall 2024
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