DEBRA D’AGOSTINO, FOUNDING PARTNER OF THE FEDERAL PRACTICE GROUP, SPEAKS WITH THE WASHINGTON POST ON LATEST IN AFGE V. TRUMP
Posted By smay || 17-Jul-2019
In win for Trump administration, appeals court stymies union challenge to civil service restrictions
President Trump at the White House on Monday. (Jabin Botsford/The Washington Post)
July 16 at 6:20 PM
A federal appeals court in Washington on Tuesday dealt a blow to labor unions representing federal workers in their battle with the Trump administration over get-tough workplace rules.
The decision by the U.S. Court of Appeals for the D.C. Circuit reverses a ruling last year that struck down key provisions in three executive orders signed by President Trump that rolled back civil service protections, making it easier to fire employees and weaken their union representation.
The orders, which affect 2.1 million civil servants, are part of a confrontational approach the president has taken toward a federal bureaucracy he calls unaccountable and wasteful. The rules, issued in May 2018, slashed the on-the-clock time employees spend on union business, made it harder to appeal performance evaluations and curtailed options for poor performers to improve.
The executive orders were challenged by more than a dozen unions representing federal employees, which called them a violation of the civil service law passed by Congress in 1978 setting out unions’ right to collective bargaining.
The three-judge panel unanimously held Tuesday that the lower court lacked jurisdiction to review the matter and that unions must first pursue such claims through an administrative process before seeking review by the appeals court.
“We reverse because the district court lacked subject matter jurisdiction,” wrote Judge Thomas B. Griffith, who was joined by Judges Sri Srinivasan and A. Raymond Randolph.
The 20-page ruling did not address the underlying issues at the heart of the unions’ challenge. Instead, the judges said the lower court “had no power to address the merits of the executive orders” and that the challenge should have been reviewed first by the Federal Labor Relations Authority, a small agency governed by a three-member board of Trump appointees charged with adjudicating federal labor disputes.
“Although the unions are not able to pursue their preferred systemwide challenge through the scheme, they can ultimately obtain review of and relief from the executive orders by litigating their claims in the context of concrete bargaining disputes,” the court wrote.
The union could be hard-pressed to find relief at the labor relations authority, legal experts said. Its board has sided with management in a majority of decisions it has issued under Trump, agency data shows.
“The rulings have been very anti-union,” said Debra D’Agostino, a founder of the Federal Practice Group, a firm that represents civil servants.
- David Cox Sr., national president of the American Federation of Government Employees, called Tuesday’s decision “a tremendous blow to federal employees and their voice in the workplace” and said the union would “fight this decision using every legal tool available to us.”
The White House said the decision was a victory for “transparency, accountability, and good stewardship of tax dollars across our federal workforce
“That includes employing individuals who are committed to their jobs and the mission of serving the public, and removing those who fall short of those standards,” White House spokesman Judd Deere said in a statement.
Tuesday’s decision was joined by judges from across the ideological spectrum: Griffith was nominated by President George W. Bush; Srinivasan by President Barack Obama and Randolph by President George H.W. Bush.
The panel overturned U.S. District Judge Ketanji Brown Jackson, who in August had blocked the Trump administration from implementing certain provisions of new rules.
Jackson said the executive orders would “eviscerate the right to bargain collectively as envisioned” in the federal labor-management relations statute.
The National Treasury Employees Union, which represents 150,000 employees, said in a statement after Tuesday’s ruling that it would ask the full panel of the D.C. Circuit to rehear the case, adding “this fight is not over.”
Randy Erwin, president of the National Federation of Federal Employees, one of the plaintiffs in the case, said in an email that the appeals court, in ruling on the jurisdiction but not the merits of the case, “did not give the Trump administration a stamp of approval.”
“On the merits of this case, the Appeals Court said absolutely nothing to contradict the analysis of Judge Jackson’s lower court ruling, which found the Executive Orders altogether unlawful,” said Erwin, who represents 110,000 employees.
“In our view, these Executive Orders violate the law, and we are going to continue to fight them until we get a decision that sticks,” he said. “This Appeals Court decision does not change the fact that the Trump Administration severely overstepped its authority.”
Tuesday’s decision does not immediately lift the lower court injunction on the rules because the panel put its decision on hold, giving the unions an opportunity to appeal.
Despite Jackson’s decision, federal agencies have successfully pushed through some of the measures at bargaining table through tough, pro-management contracts, which were not limited by her order. Multiple agencies, including the Department of Veterans Affairs and Department of Education, have curtailed the amount of time employees can spend on union business in the workplace.
If you have more questions about your rights as a federal employee, visit our website or schedule a consultation with the Federal Practice Group today.