Free speech rights of federal unions play key role in collective bargaining case

PASADENA, Calif. (CN) — Attorneys argued Monday before a Ninth Circuit panel about whether President Donald Trump violated the First Amendment rights of federal unions when he removed their collective bargaining rights.

Trump appealed a lower court’s decision to pause an executive order that stripped those rights from members of the American Federation of Government Employees and others. Trump argued the judge should have deferred to him for national security reasons. He also argues the three-judge appeals panel hearing the challenge doesn’t have jurisdiction.

The federal unions said Trump’s move was clearly retaliatory, as only the unions that opposed the president’s opposition faced the negative impact.

“That is not permissible under the statute,” said attorney Ramya Ravindran, for the unions.

The panel made no decision Monday, instead taking the matter under consideration.

Representing the president, attorney Joshua Koppel argued the lower court judge must defer to the president in matters of national security.

Trump has said the agencies affected by the executive order primarily function as national security and intelligence organizations. Because of their status, bargaining rights don’t apply to them.

“Courts aren’t in a position to make that determination,” Koppel said.

U.S. Circuit Judge Bridget Bade, a Trump appointee, questioned if a president could decide the entire federal workforce qualified as a national security organization and exclude it. Koppel posited that during wartime a president could determine that every agency must focus on the war effort, making it an intelligence agency.

“That’s really the president’s decision to make,” he added.

Koppel also argued the lower court lacked jurisdiction over the question. The complaint should have instead gone to the Federal Labor Relations Authority. From there, it could have advanced to an appeals court.

Ultimately, the lower court used an incorrect standard when ruling in favor of the unions on their First Amendment claim, Koppel said.

That lower court judge found the unions, representing over a million employees, raised serious questions about the violation of their free speech rights. He noted federal civil servants have had collective bargaining rights for over 60 years. While a president’s judgment on national security typically receives deference, courts don’t defer to the government’s interpretation of the First Amendment.

Ravindran said the government wanted the panel to believe Trump would have issued the executive order if the affected agencies had made no statements against his policies. She disputed that.

“It’s only certain unions who were determined to have the perceived, negative impact,” she said.

U.S. Circuit Judge John Owens, a Barack Obama appointee, said Ravindran convincingly made the case that Trump doesn’t like the unions. However, the lower court didn’t examine the 1977 U.S. Supreme Court case Mt. Healthy City School District Board v. Doyle, which established that the government can’t fire someone for exercising protected speech if that speech motivated the firing.

Ravindran argued that Trump made one reference to Mt. Healthy and that his case didn’t heavily rely on that ruling. Trump has the burden of proof.

“Invoking national security — that’s not enough to do this,” she added.

U.S. Circuit Judge Daniel Bress, also a Trump appointee, pushed back and said the president should receive some deference on issues of national security. Bade said national security can include foreign and domestic concerns.

Ravindran argued that even legitimate government action is unlawful if it stems from retaliation.

Getting a chance to rebut, Koppel said a fact sheet accompanying Trump’s executive order said nothing about the unions lobbying against him or making opposing statements. Instead, it focused on national security roles.

Asking the panel to reverse the lower court, Koppel then questioned what could happen if a president couldn’t consider the effects of collective bargaining on national security.