The court majority called “speculative” the union’s argument that it would lose bargaining power and suffer reputational harm that will deter present and future membership. Image: Mark Van Scyoc/Shutterstock.com
By: FEDweek StaffA federal appeals court has lifted a lower court’s injunction against President Trump’s executive order to repudiate existing contracts and to refuse to bargain with unions representing the majority of federal employees.
In a 2-1 ruling, a panel of the U.S. Court of Appeals for the District of Columbia Circuit said that the NTEU union failed to show that it would suffer “irreparable harm” if Trump’s order is left in place while the legal challenge continues.
The court majority called “speculative” the union’s argument that it would lose bargaining power and suffer reputational harm that will deter present and future membership. Those harms “would materialize only after an agency terminates a collective-bargaining agreement, and the Government directed agencies to refrain from terminating collective-bargaining agreements or decertifying bargaining units until after the litigation concludes,” it wrote.
Further, financial losses due to the end of dues withholding from members’ salaries “are presumptively remediable through monetary damages” that could be awarded later. In contrast, it said, an injunction “inflicts irreparable harm on the President by impeding his national-security prerogatives, which were explicitly recognized by Congress.”
Trump had invoked a law allowing a President to exclude functions related to national security, intelligence and investigation from union representation in a range of agencies, or parts of them, not traditionally viewed as involved with those matters—including for example the EPA, CDC and the National Institute of Allergy and Infectious Diseases.
In issuing the injunction, the lower judge had said Trump’s order was “indifferent” to the requirements and intent of that law and instead was issued “in furtherance of unrelated policy goals” including a “retaliatory motive” against unions.
A dissenting judge of the appeals court similarly noted that unions have existed in those agencies for many years, saying that “the government does not explain why irreparable injury will result from continuing this decades-long practice for a short period of time while we adjudicate the merits of this appeal.”
By becoming the first to reach court rulings, the case has become the lead one of four involving the order potentially headed to the U.S. Supreme Court to define a President’s authority to exclude unions from certain federal workplaces. The AFGE union has filed a similar case, while the administration has filed two suits seeking a court declaration that the order was within those powers.
The timing of legal rulings over the order is important as many agencies have announced, or have been preparing to announce, potentially widescale RIFs and reorganizations. Existing contracts commonly include agency promises to take certain actions to minimize the impact on employees, provisions that unions will insist be enforced—unless Trump’s order to repudiate those contracts prevails.
In a separate case, a federal district judge has issued a general temporary halt to RIFs and reorganizations, saying that such actions on such a wide scale require a grant of authority from Congress, which has not occurred. The administration has appealed that order to the Ninth Circuit federal appellate court.
Lower courts have issued similar halts to RIFs and reorganizations at a number of individual agencies, as well, with pending appeals leaving in limbo many thousands of employees who have been told—or who suspect—that they face losing their jobs or accepting an unwanted relocation.
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