Federal employee unions are hoping that a new petition will prompt the whole of the U.S. Court of Appeals for the D.C. Circuit to stop the White House from enacting executive orders that they say unfairly target labor organizations.
President Donald Trump signed the orders in May 2018, which would restrict the amount of time employees use to conduct union business, order agencies to renegotiate their labor relation contracts, and make it easier to fire poorly performing employees.
A three-judge panel ruled in July 2019 that the federal court system did not have the authority to block provisions of the orders that had previously been ruled to run counter to civil service law.
Federal unions — including the American Federation of Government Employees, the National Treasury Employees Union, the National Federation of Federal Employees, the American Federation of Teachers and the American Federation of State, County and Municipal employees — filed a petition Aug. 30 claiming that the case was of enough importance that the appeals court should rehear the arguments en banc.
“Such presidential overreach — especially the kind that flatly conflicts with existing civil service law — has never been insulated from judicial review and we shouldn’t start now,” said NTEU National President Tony Reardon in a statement.
The argument boils down to whether, in challenging the orders, unions should first have gone through the Federal Labor Relations Authority or turned to federal courts.
The ruling issued by the three-judge appeals panel argued that Congress had already set aside an avenue for unions and employees to challenge agency overreach through the FLRA, invalidating a previous district court ruling that had struck down significant parts of the orders.
“The anti-worker executive orders issued by President Trump are in violation of the law and, if implemented, would send the federal workforce into disarray. This case is vitally important with far-ranging implications for every American and deserves a hearing before the full court,” said AFGE National President J. David Cox Sr. in a statement.
The unions argue that the case is about presidential overreach circumventing the will of Congress, which would be a matter for the judicial branch to decide.
“The statute in question here, the Federal Service Labor Management Relations Statute, was deliberately designed to end ad hoc legislation-by-executive-order,” the unions’ filing states.
According to the unions, the orders run directly counter to provisions in binding legal statute, including a duty of fair representation on unions and the right by union representatives to present and process grievances while on official time. The filing also argues that the Court of Appeals decision to channel the issue through FLRA violates legal precedent set in National Mining Association v. Department of Labor: that such violations of statute cannot be meaningfully reviewed through piecemeal administrative actions..
Until the courts decide whether to grant the unions’ petition, federal agencies have been barred from enacting the orders.
Jessie Bur covered the federal workforce and the changes most likely to impact government employees for Federal Times.