Trump’s anti-union executive order has been blocked, again

A federal judge in California issued a preliminary injunction late Tuesday once again blocking President Trump’s executive order to strip two-thirds of the federal workforce of their right to join and be represented by a union, finding “persuasive evidence” that the measure was implemented in retaliation for speech protected by the First Amendment.

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. Since then, although agencies have ostensibly refrained from formally repudiating union contracts as they await a green light from courts, they have broadly disregarded the terms of those agreements, withdrawing from ongoing negotiations and grievance proceedings and cancelling the automatic collection of union dues from workers’ paychecks.

In a 29-page decision, U.S. District Judge James Donato, an Obama appointee, found that a coalition of unions led by the American Federation of Government Employees raise a “serious question as to whether their First Amendment rights have been violated.”

“In the words of a physical therapist who works at a VA medical center and is an executive vice president for the National Veterans Affairs Council of AFGE, ‘From my interactions with other VA employees, I believe many workers will feel pressure to conform to the administration’s political views and be reluctant to raise health and safety concerns or otherwise criticize agency management, for fear of further retaliation,’” Donato wrote. “[This] is persuasive evidence of the chilling effect of the government’s challenged conduct.”

Donato carefully crafted his ruling solely around the unions claims that they were retaliated against for opposing the Trump administration’s workforce policies. Last month, a federal appeals court issued a stay blocking a similar injunction in a legal challenge brought by the National Treasury Employees Union, finding the injuries in that case were still too “speculative” in nature, and impinging on the president’s legal deference on national security issues.

“The court has no intention in this order of second-guessing the president’s national security determinations or calling on the government to prove the determinations were properly made,” he wrote. “As noted, the executive branch is owed deference in such matters. But a claim of national security does not, of course, automatically negate the Constitution, particularly with respect to the First Amendment.”

Attorneys for the Trump administration contended that Donato lacked jurisdiction to hear the case and that the unions should instead pursue their claims before the Federal Labor Relations Authority. But Donato found the argument too circular in nature, describing it in a footnote as a “Heads, I win; tails, you lose” proposition.

“The government says plaintiffs’ claims should still go to the FLRA because plaintiffs allege that ‘Executive order 14,251 is invalid, meaning the agencies and subdivisions identified in the executive order remain subject to [federal labor law],’” Donato wrote. “[This] is an dd suggestion, particularly in light of the government’s insistence that EO 14251 has already excluded a large swath of agencies and subdivisions from Chapter 71 [of Title 5 of the U.S. Code]. The question of the court’s jurisdiction is not answered by the plaintiffs’ or defendants’ beliefs about the merits of the case. It is answered by the plain language of the [statute].”

In a statement Wednesday, AFGE National President Everett Kelley applauded the ruling.

“President Trump revoked our members’ union rights in retaliation for our advocacy on behalf of federal workers and the American people, and we are grateful that Judge Donato saw through his disingenuous ‘national security’ justification and has ordered the immediate restoration of their rights,” he said. “Federal employees have had the right to join a union and bargain collectively for decades, including during President Trump’s first term, and at no time have employees’ union rights caused concern for our nation’s national security.”