White House Appeals Collective Bargaining Injunction to DC Circuit
The federal government wants the U.S. Court of Appeals for the D.C. Circuit to block a lower court injunction staying a White House executive order ending collective bargaining arrangements for employees at numerous agencies, including the FCC, IRS and Food and Drug Administration. The order removed collective bargaining rights at roughly 40 agencies on national security grounds, affecting two-thirds of the federal workforce. The injunction was issued last week after a legal challenge brought by the National Treasury Employees Union, which represents workers at the FCC. NTEU has said the order is an existential threat to the union (see 2504040037).
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“In light of the district court’s sweeping usurpation of a national security prerogative statutorily entrusted to the President, this Court should now stay the district court’s extraordinary order pending appeal,” said the emergency motion for stay that the executive branch filed Wednesday.
The government also asked the U.S. District Court for the District of Columbia, which issued the injunction, for a stay pending resolution of the appeal. That request was denied in an order late Thursday.
NTEU said in a release that it "will continue to use every tool available to protect federal employees and the valuable services they provide from these hostile attacks on their jobs, their agencies and their legally protected rights to organize.”
The government’s emergency motion Wednesday said the D.C. Circuit should stay the lower court's injunction because the court lacks the authority to question the president’s decisions on national security and doesn’t have jurisdiction over the matter.
The Federal Service Labor-Management Relations Statute (FSLMRS), which granted federal employees collective bargaining rights, requires labor grievances to be brought before the Federal Labor Relations Authority before they can come to court, the government said. In the lower court opinion, Judge Paul Friedman agreed with NTEU’s argument that the Federal Labor Relations Authority didn’t have jurisdiction because of the challenged executive order, which said the targeted agencies no longer fell under the FSLMRS. That conclusion tracks with the precedent in prior challenges to the White House’s authority to use the national security exemption from collective bargaining rules, Friedman said. This is “circular logic” that assumes “the validity of the very order that NTEU contends is invalid,” Wednesday’s motion said.
When it authorized widespread collective bargaining for federal employees, Congress recognized the need for a national security exemption in some cases and “vested the President with discretion to exclude agencies or agency subdivisions from FSLMRS requirements based on national-security considerations,” the government said. "There is 'no basis on which a reviewing court could properly assess' a President’s exclusion decision.”
The executive order ending collective bargaining “can easily be read as perfectly compatible with Congress’s judgment that the President is best positioned to make determinations over time” on which agencies should be exempted based on their national security functions, the government said. The lower court “placed undue emphasis on the breadth of the executive order.” That opinion also ignored the fact that the president could “reasonably determine” that national security considerations and unions have changed enough over time “such that a larger share of the federal workforce can, and should, be excluded” from collective bargaining rules, the motion said. The statute on collective bargaining doesn’t say the president’s determination of national security exemptions “can cover only a certain percentage of the federal workforce.”
The government also pushed back on the lower court’s ruling that White House guidance issued with the order showed that it was aimed at retaliating against unions and making it easier to fire federal employees, rather than national security. A White House fact sheet listed unions filing grievances against administration policies as one of the reasons for the order, suggesting that the national security exemption “was mere pretext for retaliation and for accomplishing unrelated policy objectives,” the lower court opinion said. But the government said that “rather than suggesting a ‘retaliatory motive,’ the fact sheet reasonably describes how the FSLMRS has been used to undermine national-security requirements.” The statute “does not permit courts to second-guess the President’s decisions about how agencies must be operated so that employees can best perform their national-security work,” the government said.
NTEU has said that if the order remains in place, the union will lose two-thirds of the employees it represents and half its revenue stream, but the government said Wednesday that NTEU “would suffer no harm from a temporary stay.”
The government argued that because union membership is voluntary, it's “speculative” to think employees will leave it while the litigation is ongoing, “and just as speculative to think that the loss of some number of members would materially weaken NTEU’s bargaining position.”
NTEU has said some agencies have begun ignoring collective bargaining agreements and voluntary arrangements to withdraw union dues from employee paychecks. The lower court rejected arguments that damage from the executive order was speculative based on that submission. “The government’s argument that NTEU’s injury is ‘speculative’ therefore must be rejected for the simple reason that it has already begun to materialize,” the lower court ruled.