Judge grills administration on ‘broad discretion’ to break up federal unions

A federal judge appeared poised to at least partially block the Trump administration’s effort to strip two-thirds of the federal workforce of their collective bargaining rights, following oral arguments Wednesday in one union’s lawsuit against the White House.

Last month, President Trump signed an executive order citing a rarely used provision of the 1978 Civil Service Reform Act to exempt wide swathes of the federal government from federal labor law under the auspices of national security. Prior to the edict, the CSRA’s so-called national security exemption had only been used for the intelligence community and some pockets of federal law enforcement.

Shortly thereafter, the National Treasury Employees Union filed a lawsuit in the U.S. District Court for the District of Columbia and asked U.S. District Judge Paul Friedman, a Clinton appointee, to enjoin the government from implementing the order, which would bar union representation for two-thirds of the federal workforce writ large and 75% of federal employees currently represented by organized labor.

NTEU, and other unions in separate legal challenges, have argued that the executive order unlawfully stretches a narrow exception beyond the legal bounds of the Civil Service Reform Act and that the administration is acting not out of concern for national security, but rather to retaliate against unions that have challenged other workforce policies in court, violating their First Amendment rights.

During oral arguments Wednesday, NTEU Deputy General Counsel Paras Shah said federal payroll processors’ surreptitious cessation of union dues collections from members’ paychecks earlier this month is costing the union more than $2 million per month if left unchecked, the union-busting campaign would reduce their member rolls by 60%.

Shah highlighted the 1956 Supreme Court decision Cole v. Young, which found that a former federal food inspector was improperly denied a review of their termination on similar grounds because their position did not have close enough of a nexus to national security.

“What’s important about Cole v. Young is that the reason the court adopted a narrow definition in the context of worker protections is because the justices didn’t want the broad deference to national security to be used to swallow the entire purpose of the statutory construct,” Shah said. “The same rationale applies here. If the government gets the un-reviewability that it wants with its sweeping definition of national security that it also wants, it will be used to destroy the entire federal labor statute.”

Emily Hall, an attorney with the Justice Department, asserted that the president has broad authority to determine that a function of government both is connected to national security and that unions at an agency could improperly hamstring his ability to direct workforce policy.

“The Supreme Court has repeatedly held that presidential determinations as to national security are really inappropriate for judicial second-guessing and review,” she said. “[The] key is that Congress decided to apply the ‘determination’ language ... They vested the president with the authority to make determinations.”

But both Shah and Friedman repeatedly referred to a White House fact sheet that accompanied the executive order that cited unions’ resistance to Trump as a motivating factor for invoking the CSRA’s national security exemption.

“He’s willing to be kind to those who work with him, but those who have sued him, who have filed grievances or otherwise complained against him, he’s not going to bargain with them,” Friedman said. “So he’s issued an executive order which harms them. How else can you read what he’s done?”

Hall disagreed with Friedman’s reading of events but seemed to argue that it would be within the president’s rights to strip the collective bargaining rights from a union that he deems intransigent.

“I understand the emphasis on the ‘declared war’ language [in the fact sheet], but that’s part of the president’s reasoning under [the law],” she said. “Whether the provisions of Chapter 71 [of Title 5 of the U.S. Code] can be applied consistent with the national security requirements and consideration, part of that discretionary determination involves how agencies are able or unable to go ahead and implement the changes that the president deems necessary for national security.”

Friedman also took issue with the idea that the “primary function” of agencies such as the Environmental Protection Agency or Internal Revenue Service as national security.

“It has to have some meaning—it’s not just the president saying that it’s a primary function,” he said. “The primary function of the Agriculture Department is not to present affidavits and declarations to a [Foreign Intelligence Surveillance Court], that’s the national security division of the Justice Department. You can’t say that there isn’t some basis for this—we can look at the dictionary and common sense definitions. ‘Primary function’ has to mean something.”

Unions traditionally have struggled to receive relief from federal district courts in recent years, as the Civil Service Reform Act requires labor groups to first seek adjudication from the Federal Labor Relations Authority before appealing to federal courts of appeal. But Shah argued that the executive order itself clears that bar for labor groups impacted by it.

“Our Chapter 71 procedures have been taken away from us,” he said. “We can’t go to the FLRA. We can’t file grievances, and arbitrators aren’t hearing our grievances. The FLRA expressly requires the dismissal of cases when an agency has been excluded from the statute.”

Friedman signaled that he may consider a ruling in which some agencies are blocked from implementing the executive order, while other agencies, such as the Defense and Homeland Security departments, are allowed to proceed. Shah objected to such a decision, however.

“One of our claims discusses that the exemptions effectively collectively undo most of the statute, and we also believe our retaliation claims exceeds all of the exemptions,” he said. “If we were to go agency by agency, we wouldn’t concede that any one of those determinations satisfies the requirements for the exemption, and we don’t think any meet the Cole v. Young standard.”