Appeals court denies unions chance for a rehearing over Trump’s workforce executive orders

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The U.S. Court of Appeals for the District of Columbia Circuit has denied federal employee unions a chance for a rehearing on the merits of President Donald Trump’s workforce executive orders.

The court on Wednesday denied the unions’ petition for a rehearing en banc.

A group of federal employee unions, which sued the Trump administration last June over the president’s workforce executive orders on collective bargaining, official time and employee removals, in August had asked a full panel of judges to rehear their case.

Their request follows a decision from a three-judge panel on the U.S. Court of Appeals, which in July had overturned an August 2018 decision from a federal district court. The panel said the lower court didn’t have jurisdiction to invalidate portions of the president’s executive orders but denied the Trump administration an opportunity to immediately begin enforcing them.

Legal battles over the president’s three workforce executive orders have stretched on for more than a year.

But with Wednesday’s latest decision from the appeals court, those battles may end soon.

Federal employee unions on Wednesday said they were disappointed with the decision from the full appeals court.

“The court’s decision not to grant an en banc rehearing of this vitally important case with far-reaching effects across the federal government is a sad day for the country,” J. David Cox, national president of the American Federation of Government Employees, said in a statement. “While we review our options, hundreds of thousands of federal government workers will suffer as their access to union representation at the worksite is stripped away by the implementation of President Trump’s union-busting executive orders.”

Both the AFGE and the National Treasury Employees Union said they would discuss possible next steps.

“Unfortunately, this decision sets the table for years of chaos in the federal sector, as we have to take our issues, piecemeal, through the Federal Labor Relations Authority,” NTEU National President Tony Reardon said in a statement. “It is important to remember that the appellate court did not rule on the merits of our case against the executive orders, only jurisdiction. We still believe that these orders violate existing federal law and we will not relent on that argument, either at the FLRA or subsequently back in the courts. In the meantime, we are alarmed that the court-ordered injunction against many provisions of those orders may soon be lifted, subjecting federal employees to even more harmful actions by this administration. All Americans should be concerned that the executive branch is so eager to attack its own employees and weaken their legal right to collectively bargain.”

The  U.S. Court of Appeals must actually lift the injunction on Trump’s workforce executive orders before agencies, at the direction from the Office of Personnel Management, could begin enforcing them.

The injunction has been in place since August, when a federal district court invalidated nine key provisions from Trump’s workforce executive orders. That meant agencies, technically, couldn’t set strict limits on union representatives’ use of official time or ban the organizations from using government office space.

Federal employees unions, however, have said they’ve continued to experience direct impacts of the president’s EOs over the past year while legal battles have continued.

The Trump administration appealed the federal district court’s decision last September.

But in July, the appeals court dismissed the lower court’s decision because, as the three judges argued, the lower court lacked jurisdiction in ruling on the case. The appeals court didn’t weigh in on the legal merits of the president’s workforce executive orders, a point that had ultimately fueled the unions’ request for a rehearing.

Throughout these legal battles, the government has maintained that federal employee unions should take their complaints with Trump’s workforce executive orders in specific collective bargaining instances to the Federal Labor Relations Authority.

Meanwhile, unions’ complaints with the current state of collective bargaining have been piling up over the last year.

The Department of Health and Human Services is implementing a series of new articles that its union, the National Treasury Employees Union, said it hasn’t agreed to. Most of the articles closely resemble a decision from the Federal Service Impasses Panel, which stepped in to break up what HHS described as a deadlock between it and NTEU.

After a series of similarly contentious negotiations between the Education Department and AFGE, Education announced plans to enforce new articles on telework, employee performance management and other topics once included in the two parties’ collective bargaining agreement.

The Department of Veterans Affairs has limited official time for some 104,000 medical professionals within the agency, and it’s currently pursuing additional limits in its bargaining negotiations with AFGE.

The Trump administration, meanwhile, has argued that the current injunction on the president’s workforce executive orders, have a real and immediate impact on ongoing collective bargaining negotiations with several agencies, including the Office of Personnel Management, the Department of Housing and Urban Development and the VA, among others.

Wednesday’s decision from the court comes a day after employee unions rallied on Capitol Hill against the president’s workforce executive orders — and the overall divisive environment that the EOs have inspired between unions and agencies at the collective bargaining table.

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