Trump takes a battering in court over labor union executive order

SAN FRANCISCO (CN) — A federal judge pressed federal attorneys in court on Wednesday over a lawsuit against the White House, in which a group of labor unions claims that the president has stripped them of their bargaining protections for criticizing the president’s policies.

U.S. District Judge James Donato seemed skeptical of the president’s arguments that his March executive order — which excluded several unions from these protections under federal law based on “national security” concerns — didn’t violate the First Amendment.

The Barack Obama appointee called on Department of Justice attorneys to justify the “abrupt” and “unprecedented” changes to federal law, including the Trump administration’s efforts to target agencies that had no apparent ties to national security or intelligence gathering.

“One of the agencies is the National Allergy Institute. Can you tell me how a bunch of allergy researchers are going to violate national security by using their time at work for collective bargaining?” Donato asked.

The judge was equally unimpressed with the government’s arguments that the plaintiff unions had no impending harm to justify their request for an injunction blocking the president’s order.

“There’s not some ongoing change that the plaintiffs should fear as a result of ongoing First Amendment activity,” attorney Tyler Becker of the Department of Justice told the judge.

“Well, there’s a chilling factor,” Donato responded. “The First Amendment harm is that you’re chilled for speaking up. If you’re suggesting that they waited too long, I don’t agree with that.”

On March 27, President Trump issued an executive order entitled “Exclusions from Federal Labor-Management Programs,” which exempted certain federal agencies from Chapter 71, Title 5 of the U.S. Code — a federal law that outlines the rights of federal employees to organize, join or assist labor unions “without fear of penalty or reprisal,” and establishes procedures for collective bargaining between federal agencies and unions.

The unions claim that Trump’s order stripped them of their protections under federal law for criticizing his efforts to “decimate the federal workforce” with mass firings and “fundamentally restructure the federal government,” using the national security argument as an excuse.

“There is no previous executive order along these lines that has excluded entire cabinet-level agencies,” attorney Ramya Ravindran of Bredhoff & Kaiser, who represented the American Federation of Government Employees, told the judge.

Although previous presidents have carved out exemptions to the law, including President Jimmy Carter in 1979, Donato agreed that it’s never been done in such a “dramatic, broad-brush fashion” as it has under Trump.

In court, the unions argued that a fact sheet issued alongside the president’s order could be the smoking gun they need to prove that Trump’s actions were in retaliation for their speech. The White House document refers to multiple “hostile federal unions” and asserts that “certain federal unions have declared war on President Trump’s agenda.”

They argued that though the president said all the right words, there’s still a case here for good old-fashioned viewpoint discrimination against claims he didn’t like made by the unions.

Government attorneys pushed back on this characterization.

“There’s no viewpoint discrimination expressed in the order. It’s not just one union or group — it applies neutrally and equally to other unions as well,” Becker argued.

“I’m sorry. There’s another way of saying that. It’s that it’s 100% viewpoint discrimination,” Donato said. “It’s not viewpoint-neutral if you include everyone. It just means you include everyone.”

The unions also argued they were currently facing “irreparable harm” in the form of the termination of their collective bargaining agreements.

Although the Office of Personnel Management, which manages human resources for federal government employees, put out an advisory in March asking agencies not to make any decisions based on the president’s order, the unions claim that multiple federal agencies have already terminated their agreements with the unions as a result.

The unions asked the judge to block the president’s order, which they claim violates the First Amendment, Fifth Amendment and the separation of powers doctrine, along with exceeding presidential authority. They asked for a court decision that bars agencies from enforcing the executive order.

The judge did not indicate when he would issue a ruling, although he said it would be “shortly.”

“I’m not deciding the merits today. I’m just looking at the record,” Donato assured the attorneys.

Irma Westmoreland, chair of Veterans Affairs at National Nurses United, a plaintiff union that represents nurses at the U.S. Department of Veterans Affairs, said after the hearing that the White House order has already chilled some workers from speaking up for fear of retaliation.

“Last week, I did interviews with about 20 employees, and nobody wants to go on the record,” she told Courthouse News. “They’re afraid they won’t get overtime, or they’ll be targeted for a reduction in force.”

Lawyers for both sides declined to comment on the case.

The labor unions first sued the White House in early April and moved for a temporary restraining order against the president’s order shortly after filing.

This case was filed in the Northern District of California and heard at the Phillip Burton Federal Courthouse in San Francisco, California.