Friday, October 4, 2019

Federal Judge Elizabeth Wolford Grants Trump's Executive Orders Weakening Government Unions

Service Employees International Union (SEIU)

The issue:

Can Trump weaken the power of government unions?

The executive orders, signed last year, would make it easier for underperforming federal employees to be fired. They would also direct federal agencies to renegotiate labor contracts with unions, including SEIU, and limit how much time workers can use for union business.


Federal Judge Rejects Last-Ditch Effort to Halt Trump Executive Orders on Government Union Clout

U.S. District Judge Elizabeth Wolford of the Western District of New York allowed the orders to take effect, but said she will consider another effort to strike them down later this month.

| October 04, 2019 at 02:41 PM

A federal judge in Rochester has rejected a last-ditch effort by one of the country’s largest unions to bar the Trump administration from enforcing a series of executive orders the group said is designed to weaken the power of government unions and make it easier to have their members fired.
U.S. District Judge Elizabeth Wolford of the Western District of New York allowed the orders to take effect but said she will consider another effort to strike them down later this month.
That’s when she’s scheduled to consider another motion to halt the executive orders from the Service Employees International Union, who’s one of a handful of unions suing the Trump administration over the new rules.
The executive orders, signed last year, would make it easier for underperforming federal employees to be fired. They would also direct federal agencies to renegotiate labor contracts with unions, including SEIU, and limit how much time workers can use for union business.
Wolford wrote in her decision that, since she’s scheduled to consider a preliminary injunction against the orders in a few short weeks, it’s unlikely unions will be harmed in the meantime.
“The bureaucracy of the federal government is anything but fast-moving and the Court is hard-pressed to conclude that Plaintiffs’ collective bargaining rights will be irreparably harmed immediately after the stay with respect to the Executive Orders is lifted,” Wolford wrote.
SEIU had filed the lawsuit in U.S. District Court for the Western New York on behalf of its members that work at Veterans Health Administration hospitals in Buffalo and Canandaigua, New York. Scott Phillipson, the local affiliate’s president, said he was disappointed in Wolford’s ruling but said they’re not giving up.

“These Union members work every day to make the VA the best it can be for our nation’s veterans,” Phillipson said. “We will keep on fighting to protect the rights of these workers and the veterans they serve.”
The union, which was represented on the motion by Danielle Leonard, an attorney from Altshuler Berzon in San Francisco, said it was still confident in its legal position.
The group is also represented by attorneys from Creighton Johnsen & Giroux in Buffalo and Mairead Connor, a solo practitioner in Syracuse.
The decision from Wolford was the last hurdle between the implementation of the executive orders, which took effect late Thursday. They were previously put on hold by a federal judge in Washington, D.C., but that decision was reversed by the D.C. Circuit U.S. Court of Appeals.
The D.C. Circuit issued its mandate late Thursday, which lifted the injunction from the trial court. Wolford said she didn’t expect any irreparable harm to come to the unions challenging the orders between Thursday and the arguments scheduled later this month.
“The Court is hard-pressed to conclude that irreparable harm will inure pending the return date of Plaintiffs’ motion for a preliminary injunction on October 21, 2019,” Wolford wrote.
She also addressed, briefly, the arguments from SEIU against the legality of the executive orders, themselves. SEIU is challenging both the actual content of the orders, and how they were implemented.
Wolford wrote that it was outside her purview to hand down a ruling on the actual content of the executive orders, or what they were intended to do. That authority rests, she wrote, with the Federal Labor Relations Authority, a federal, bipartisan entity that reviews such claims.
The same position was taken by the D.C. Circuit in its decision this year. That litigation, which was brought by the AFL-CIO, ended with the federal appellate court directing the unions to take their claims to the FLRA, rather than challenge them in court.
But that was only half of Wolford’s position. She said she may not be able to rule on the actual content of the orders, but that she could evaluate whether they were promulgated lawfully.
Her position on that issue, though, did not appear to be in favor of the unions, according to the decision.
Federal rulemaking usually requires a period of notice and comment for the public. Wolford wrote that Trump wasn’t required to take that step, in this instance, because he was prescribing regulations for employees of the executive branch, not creating a broader rule.
“There is simply no plausible basis for the Court to conclude that President Trump was required to engage in notice-and-comment rulemaking before issuing the Executive Orders pursuant to § 7301,” Wolford wrote.
Representatives from the U.S. Office of Personnel Management, which is tasked with implementing the executive orders, did not immediately respond to a request for comment on Wolford’s decision.
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