Another Union Sues to Block Trump Workforce Orders

A union representing Veterans Affairs employees in Buffalo, N.Y., filed a federal lawsuit this week challenging three executive orders that have been at the center of another legal challenge for more than a year. The new lawsuit comes just weeks before an existing injunction against key provisions of the orders could be lifted.

Local 200United of the Service Employees International Union is suing President Trump and acting Office of Personnel Management Director Margaret Weichert in the U.S. District Court for the Western District of New York, alleging that three workforce orders signed in May 2018 exceeded the president’s constitutional authority and violated the 1978 Civil Service Reform Act.

The executive orders in question seek to shorten the length of performance improvement plans to 30 days, exempt adverse personnel actions from grievance proceedings, streamline collective bargaining negotiations, and significantly reduce the number of work hours union members can spend on official time.

They have been the subject of a protracted legal battle between more than a dozen federal employee unions and the Trump administration. Although a federal judge in Washington, D.C., issued an injunction blocking the implementation of key provisions of the orders in August 2018, a three-judge panel at the D.C. Circuit Court overturned that decision last month on jurisdictional grounds. The injunction will remain in place until unions have an opportunity to appeal or ask for a rehearing by all 11 judges of the D.C. Circuit.

In the new lawsuit, SEIU argued that Congress, when it passed the 1978 Civil Service Reform Act, only provided two narrow avenues by which a president can issue executive orders related to labor-management relations, and that the orders in question fall squarely outside of those boundaries.

“First, the president may exclude an agency or agency subdivision from coverage under the [statute] if the agency or agency subdivision ‘has a primary function [of] intelligence, counterintelligence, investigative, or national security work,’” SEIU wrote. “Second, the president may issue executive orders suspending provisions of the [statute] ‘with respect to any agency, installation, or activity located outside the 50 states and the District of Columbia, if the president determines that the suspension is necessary in the interest of national security.’”

Additionally, SEIU challenged OPM’s ability to issue regulations governing collective bargaining procedures, arguing that the statute only confers such authority to a few specific parties: the Federal Labor Relations Authority and its general counsel, the Federal Mediation and Conciliation Service, the Federal Service Impasses Panel, and the assistant secretary of Labor for labor management relations.

The lawsuit also takes care to spell out why unions believe the district court has jurisdiction over the matter, an issue at the root of the D.C. Circuit Court’s decision last month, which found that unions should first go to the FLRA for administrative review. SEIU noted that the FLRA has lacked a general counsel for nearly two years, and thus is unable to hear any unfair labor practice complaints.

“There are several reasons that the legality of the executive orders cannot be reviewed by the FLRA, in addition to the lack of a general counsel to bring complaints prosecuting unfair labor practices, including but not limited to: a general counsel’s decision not to issue a complaint on an unfair labor practice charge is not judicially reviewable; the FLRA’s orders on issues of negotiability are constrained to certain statutory issues; and the FLRA lacks jurisdiction to review the legality of the underlying administrative rules,” the union wrote.

Because the Western District of New York is part of the 2nd Circuit Court of Appeals, its judges are not obligated to follow precedent set by the D.C. Circuit. If successful at the district court level, this lawsuit could mean that the Trump administration could be constrained from legally implementing the executive orders well into next year. It took 10 months for the D.C. Circuit to issue a ruling after the Justice Department appealed the District Court decision.