Appeals Court Backs Trump Bid To Get Tough On Government Unions

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Kevin Daley Supreme Court correspondent
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A federal appeals court handed President Donald Trump a victory Tuesday in his push to curb the power of government unions.

A three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit reversed a trial court ruling barring enforcement of three executive orders Trump issued that reduce the power of government unions and facilitate removal of lackluster civil servants.

“Lacking jurisdiction, the district court had no power to address the merits of the executive orders,” Judge Thomas Griffith’s decision for the panel reads.

The president issued a trio of orders in May 2018 addressing civil service protections. Administration officials billed the directives as the principle thrust of Trump’s push to remove ineffective employees and eliminate waste in the federal agencies.

The orders reduce grace periods for poor-performing civil servants, restrict the amount of time federal workers may spend on official union duties during business hours, set goals for agencies to pursue when negotiating contracts and narrow the range of issues subject to negotiation during collective bargaining, among other items.

A coalition of labor unions including the American Federation of Government Employees (AFGE) and the National Federation of Federal Employees (NFFE) challenged the order in federal court. They advanced a number of arguments, saying the president had no right to issue executive orders touching federal labor relations and that the directives at issue violate constitutional rights to free association and the Federal Service Labor-Management Relations Act (FSLMRS). (RELATED: Appeals Court Sides With Trump In Anti-Corruption Lawsuit Against D.C. Hotel)

J. David Cox, president of the American Federation of Government Employees (AFGE), is led away by a member of U.S. Capitol Police while protesting the government shutdown on January 23, 2019. (Alex Wong/Getty Images)

J. David Cox, president of the American Federation of Government Employees (AFGE), is led away by a member of U.S. Capitol Police while protesting the government shutdown on Jan. 23, 2019. (Alex Wong/Getty Images)

U.S. District Judge Ketanji Brown Jackson barred administration officials from implementing the orders in August 2018. The judge said Trump’s directives violated FSLMRS, the 1978 law that established collective bargaining rights for government workers.

Jackson said the president’s orders effectively “eviscerate the right to bargain collectively as envisioned in the FSLMRS.”

The D.C. Circuit did not reach the merits of the dispute in Tuesday’s decision. Instead the unanimous panel held that the trial court had no power to hear the case in the first place. Griffith said the unions must first take up the dispute with the Federal Labor Relations Authority (FLRA), an independent agency that directs labor-management relations for the government. Only after FLRA administrative proceedings can the case move to federal court, the D.C. Circuit said.

“Requiring the unions here to proceed through the FSLMRS’s scheme does not foreclose ‘all meaningful judicial review,'” Griffith cautioned. “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.”

“Today’s terrible decision by the U.S. Court of Appeals for the District of Columbia is a tremendous blow to federal employees and their voice in the workplace,” AFGE President J. David Cox Sr. said in a statement. “The decision is mistaken about the jurisdictional question, wrong on the law, and jeopardizes the rights of federal employees across the government.”

The union plaintiffs can ask the full D.C. Circuit to review the decision or appeal to the Supreme Court.

There are approximately 2 million full-time federal workers.

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