Judges issue promising rulings for groups fighting Trump’s anti-union order

Federal judges in two jurisdictions issued promising court rulings Tuesday night for the federal employee unions seeking to block the Trump administration’s effort to strip two-thirds of the federal workforce of their collective bargaining rights.

In March, President Trump signed an executive order invoking a rarely used provision of the 1978 Civil Service Reform Act to strip most federal employees of their collective bargaining rights under the auspices of national security. Before the White House announced and published the edict, the administration filed lawsuits against the American Federation of Government Employees and National Treasury Employees Union in courts staffed only with Republican-appointed judges seeking declarations that the order is lawful.

Though he was sympathetic to the government’s position, U.S. District Judge Danny Reeves, a George W. Bush appointee serving in the eastern district of Kentucky, on Tuesday dismissed the government’s case against NTEU, finding that the administration lacked standing.

“Notwithstanding its laudable goals, [the] Treasury [Department] lacks standing to bring this action against [NTEU] Chapter 73,” Reeves wrote. “Much like the declaratory judgment plaintiff in Saginaw County [v. STAT Emergency Medical Services], looking to Treasury’s claim under its private or public rights leads to the inescapable conclusion that ‘each one asks this court to do something it cannot.’ This decision says nothing of the merits of the case.”

Attorneys argued on behalf of the government that agencies are harmed by the potentiality that NTEU would seek the enforcement of its collective bargaining agreements if management sought to implement the executive order, which could lead to the government having to pay penalties such as backpay if it loses such a case. Reeves disagreed.

“While extant CBAs inherently create impediments to swift reductions in force, Treasury may not generate standing by inflicting harm upon itself by terminating employees and risking losing the value of those employees’ work if it is made to reinstate and backpay them,” he wrote. “[Additionally], these ‘penalties’ cannot amount to threatened injuries because they are more akin to generalized grievances which lack the requisite particularity Article III [of the Constitution] demands.”

A motions hearing in the Trump administration’s other case seeking pre-clearance of the executive order, Defense Department v. AFGE, filed in the Western District of Texas, is scheduled for June 10.

A new way forward for unions

Days after a federal appellate court issued a stay of his preliminary injunction blocking the administration from implementing the union edict, U.S. District Judge Paul Friedman, an Obama appointee who serves on the bench in Washington, D.C., issued an order suggesting he aims to issue a new, more tailored ruling in accordance with the higher court’s decision.

Much of the three-judge panel’s ruling last week hinged on the Trump administration’s insistence that it has not formally repudiated any collective bargaining agreements. With that in mind, the court left the door open for NTEU to continue to pursue an injunction if “a specific agency or subagency deviates from that self-imposed rule.”

Friedman noted several pieces of evidence already provided in his court that agencies are quietly disregarding union contracts without formally repudiating them, including the surreptitious cancellation of union dues withholding from employees’ paychecks, the preparation of reduction in force plans without engaging in union negotiations and the wholesale withdrawal from participation in grievance proceedings.

“While NTEU may not have shown that any agency has formally cancelled a collective bargaining agreement, the abovementioned actions demonstrate that certain agencies have in essence disregarded critical provisions of the collective bargaining agreements,” he wrote. “Furthermore, the actions demonstrate that certain agencies are operating in accordance with the executive order by setting aside core provisions of the [Federal Sector Labor Management Relations Statute] that Congress unequivocally deemed to be ‘in the public interest.’”

Friedman instructed attorneys for the government and NTEU to submit a joint plan to address how to proceed under the D.C. Circuit’s order by Thursday at noon.