AFGE reignites executive order legal dispute with new contempt motion against VA

Update as of Friday, Sept. 21 at 2:30 p.m.: The D.C. District Court struck down AFGE Local 3399’s motion of contempt on Friday afternoon. 


A federal district court closed the case last month, but for at least one union, the battle over the president’s executive orders on official time and collective bargaining isn’t over yet.

In what may be the first of several like-minded moves from federal unions, an American Federation of Government Employees local wants a federal district judge to declare that the Veterans Affairs Department has acted in contempt of the same court’s recent ruling on the president’s executive orders.

According to AFGE Local 3399, a VA medical center in Missouri failed to comply with the court’s Aug. 24 ruling that invalidated nine provisions of the president’s executive orders on official time, collective bargaining and employee removals.

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The union filed a contempt motion in the U.S. District Court for the District of Columbia late Wednesday night.

But by AFGE’s account, the local submitted multiple requests after the court’s ruling to leaders within the Harry S. Truman Memorial Veterans’ Hospital in Missouri to begin rolling back the provisions of the orders that had been implemented.

When the EOs were in effect, VA had told union representatives they must request all official time for a specific pay period in advance. But AFGE said VA local officials continued to demand official time be requested in advance and denied union representatives official time when they failed to comply with their policy.

In one specific case, VA denied official time to a union representative to present a grievance on this very dispute over official time, according to AFGE.

To little surprise, lawyers for the Trump administration said they disagree with the contempt motion.

The administration’s response, though brief, is biting. It said AFGE filed the motion “without the barest effort to confer with defendants’ counsel before and references the time AFGE submitted its contempt motion — 11:13 p.m. on Wednesday.

The local union should have given the administration’s defendants time to review the facts and then confer with the union, the administration’s attorneys said.

“Because AFGE 3399 made no effort to meet and confer with defendants’ counsel to sort out its allegations before moving for contempt, and likewise included no meet-and-confer statement in its contempt motion or supporting brief, the court should summarily deny the motion,” the administration’s attorneys wrote in their defense, filed Thursday afternoon.

The entities involved in this dispute, AFGE 3399 and the VA, are both non-parties to the specific litigation before the D.C. district court, the administration also argued.

“Forcing defendants to substantively respond to contempt allegations by a non-party union against a non-party federal agency when they have had no opportunity to familiarize themselves with the underlying facts, much less explore possible resolutions, would ill serve the interests of judicial economy.”

During oral arguments back in July, the administration had argued that the unions’ consolidated case fell outside of the jurisdiction of the D.C. district court altogether and made the case that employee groups should raise their objections or disputes in implementing the EOs on a case-by-case basis with the Federal Labor Relations Authority.

The court closed this case late last month, when D.C. District Judge Ketjani Jackson Brown ruled  nine provisions of the Trump administration’s executive orders conflicted with the spirit and intent of the Civil Service Reform Act and Federal Labor-Management Relations statute.

The Office of Personnel Management a few days later ordered agencies to “fully comply” with the federal district court’s ruling and begin rescinding the provisions of the president’s executive orders that were now invalidated.

Like initial implementation of the president’s EOs, agencies have taken different approaches to comply with OPM’s guidance, unions said.