A three-judge panel has denied the Trump Administration’s motion to expedite its appeal of a Federal Judge’s ruling in August that struck down as “unconstitutional” the President’s three executive orders which rolled back Federal worker protections and greatly restricted the ability of Federal unions to represent their members.
“We agree with the ruling from the U.S. Court of Appeals for the D.C. Circuit in which three Judges said the government did not articulate ‘strongly compelling’ reasons for a rushed briefing schedule,” National Treasury Employees Union President Tony Reardon said.
‘Law’s on Our Side’
“U.S. District Judge Ketanji Brown Jackson’s decision thoroughly and correctly dismantled the May 25 orders, and we look forward to continuing our successful arguments in the U.S. Court of Appeals. The law clearly states that collective bargaining in the Federal sector is in the public interest, and no President can undermine that with executive orders.”
NTEU represents 150,000 employees at 33 Federal agencies and departments.
J. David Cox, president of the American Federation of Government Employees, said in a statement, "I applaud the appellate court for rejecting the administration's request to expedite the schedule, which AFGE and other unions opposed. The court was correct to deny the government's motion because the government failed to show good cause for an expedited briefing schedule, or that a return to the status quo, which prevailed for 40 years, was likely to cause irreparable harm to the government."
About Suppressing Unions
He continued, "At its heart, this case is about the administration's attempts to deprive 2.1 million workers of their rights to work with agency management to address and resolve workplace issues such as sexual harassment, racial discrimination, retaliation against whistle-blowers, improving workplace health and safety, and enforcing reasonable accommodations for workers with disabilities."
On Aug. 25 Judge Jackson had ruled the Trump Administration’s May 25 executive orders, including one that targeted so-called official time, violated the 1st Amendment to the U.S. Constitution and the separation of powers as established in law.
Official time refers to the longstanding labor/management arrangement which permits union reps, who are on-the-clock Federal employees, to get paid release time to handle the grievances and other issues raised by their colleagues.
Mr. Trump’s executive orders took direct aim at this right and would have seriously hindered the Federal unions from representing workers as they have been required to do since President John Kennedy approved collective-bargaining rights for Federal workers.
In subsequent legislation, including the 1978 Civil Service Act, Congress weighed in and supported the presence of the unions in the Federal workplace, as well as the independent civil-service merit system, which was established under the Pendleton Act in 1883.
Made It Easier to Fire
The White House executive orders also called for “making procedural changes to…streamline the removal of poor performers” in Federal employment under the caption “strengthening the merit system.” The White House estimated the changes would save taxpayers at least $100 million a year when fully implemented.
“The current system makes firing bad employees prohibitively difficult, undermining the Federal Government’s merit principles that call for removing poor performers,” according to the White House statement. “It takes 6 months to 1 year to remove a tenured Federal employee for poor performance, plus an average of 8 more months to resolve appeals. Tenured Federal employees are also 44 times less likely to get fired or laid off than private-sector workers.”
In her opinion, Judge Jackson conceded the President could issue executive orders on labor relations but said those orders could not contradict existing Federal collective-bargaining rights. “And because many of the executive order provisions that the unions challenge here have that effect, this court concludes that the President has overstepped his bounds,” she wrote.
DeVos Fired First Shot
The Trump Administration signaled its anti-union agenda in March when U.S. Education Secretary Betsy DeVos unilaterally declared an impasse and threw out the existing contract covering 3,900 Federal employees represented by the AFGE. In its place, she imposed what amounted to an illegal management edict that stripped workers of their job rights and greatly restricted the ability of union officials to represent them.
After the President’s May executive orders were signed, other agencies followed DOE’s aggressive lead, including the Social Security Administration and Department of Veterans Affairs, which issued similar edicts in an attempt to force unions from the Federal workplace.
According to Government Executive, “since the executive orders were struck down, the Office of Personnel Management rescinded guidance on how to implement their provisions, and indicated that agencies should “fully comply” with the court decision, although Director Jeff Pon said the administration was still contemplating next steps in the legal battle.”
But Government Executive also reported that while “some agencies pulled back unilaterally,” unions “reported that departments, like the Health and Human Services, have continued to push for provisions of the executive orders through collective bargaining negotiations.”
Mr. Pon recently resigned from his post and was replaced by Office of Management and Budget Deputy Director Margaret Weichert.
OMB’s Executive Director, Mick Mulvaney, was elected to Congress from South Carolina on the 2010 Tea Party wave and was co-founder of the ultra-conservative congressional Freedom Caucus.
In the first few months of the Trump presidency, it was Mr. Mulvaney who articulated a need to “rebuild” the Federal Government. “This is trying to do something that has never been done before. The executive branch of government has never been rebuilt,” he said. “It has grown organically over the course of the last 240 years, and the President of the United States has asked all of us in the executive branch to start from scratch, a literal blank piece of paper, and say, if you’re going to rebuild the executive branch, what would it look like?”
Mr. Trump has since been able to have two additional Justices confirmed to the Supreme Court, Neil Gorsuch and Brett Kavanaugh, who, according to National Public Radio’s Nina Totenberg, both ascribe to the principle of the “Unitary Executive.”
“First, it was Neil Gorsuch, and now, Kavanaugh, both of whom have long believed that presidential powers have been unconstitutionally weakened over most of the last century,” she said.
“There are about 2 million people who work in the Federal Government. Despite being in charge of the Executive Branch, the President is limited in the people he can fire. But could that be about to change?” Ms. Totenberg asked.
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