A federal legal battle takes a new turn

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A yearlong battle to block what unions see as Trump administration union-busting executive orders has been joined by a Western New York labor group. 

An Aug. 13 lawsuit filed by SEIU Local 200United in a Buffalo federal court could at minimum substantially delay the Trump administration’s 14-month attempt to implement rules it says are meant to streamline the federal government’s dealings with unions and thus save taxpayers money.

The SEIU local’s court filing follows a July ruling by a Washington, D.C., appeals panel overturning a lower court order that had, for the past year, prevented the Trump administration from implementing three executive orders signed by the president in May 2018.

Based in Buffalo, Local 200United represents some 15,000 workers at schools, hospitals and municipalities across New York and in Vermont. Locally, the union represents federal workers at the Canandaigua VA Medical Center and federal workers at Buffalo and Erie County VA hospitals. 

Local 200United members also include a host of area and statewide non-federal workers, among them: employees of the town and village of Geneseo; the villages of Livonia, Avon, Gowanda, LeRoy, Mount Morris and Springville; and workers and non-tenure track faculty at the University of Rochester, and Nazareth, Wells and Ithaca colleges. 

The 2018 Trump administration orders seek to cut the length of performance improvement plans to 30 days, limit union members’ ability to file grievances, change rules governing collective bargaining, and significantly cut the amount of time union members can spend on union business while they are on the clock. 

Last year, a bevy of unions moved quickly to block the Trump orders, filing an action in the District of Columbia. Lead plaintiffs were the American Federation of Government Employees, AFL-CIO; the National Treasury Employees Union; the National Federation of Federal Employees, FD1, IAMAW, AFL-CIO; and the American Federation of State, County and Municipal Employees, AFL-CIO. More than a dozen other labor organizations including teachers, teamsters and trade unions joined the lawsuit. 

In unilaterally moving to curb union activity, the president exceeded his constitutional authority by improperly usurping Congress’s authority, the unions maintained.  

Justice Department lawyers moved to dismiss the unions’ complaint, arguing that the court lacked jurisdiction in the dispute and that the president was well within his authority to issue the orders. 

In a ruling handed down in August 2018, District of Columbia Judge Ketanji Brown Jackson found that the Trump orders would in effect eviscerate federal unions.

“This Court has decided that the unions have the better of this argument,” Jackson wrotein her more than 100-page ruling.

In short order, the Trump administration objected, filing an appeal in April. The three-judge panel that found last month in the administration’s favor did not rule on the merits of the case, overturning Jackson’s ruling on procedural grounds alone.

Agreeing with the government’s position that the district court lacked jurisdiction, the panel cited rules that require the unions to seek an administrative fix before taking their complaint to a court.  

“The unions must pursue their claims through the scheme established by the statute, which provides for administrative review by the (Federal Labor Relations Authority) followed by judicial review in the courts of appeals,” the appellate panel wrote in an unsigned opinion. 

All well and good, the SEIU counters in its brief, but there is a Catch-22: “The position of General Counsel at the FLRA has been vacant since November 2017 and was vacant when President Trump issued the executive orders,” and as a result “the FLRA has announced and states publicly on its website that because it lacks a General Counsel, it cannot perform its statutory function of issuing complaints.”  

The SEIU complaint also repeats an argument the other unions made in the 2018 complaint, maintaining that “even if the orders were not unconstitutional, which they are, they should be enjoined because they violate federal statutes … by impermissibly seek(ing) to rewrite portions of the Federal Service Labor-Management Relations Statute.” 

By filing the case in the Western District of New York, which is under the federal Second Circuit and thus not bound by decisions made by Washington, D.C., federal judges, the SEIU in effect puts the dispute back to square one. 

If the case takes as long to wind its way through the Second Circuit as it did through the D.C. courts, the dispute could be pushed well into the 2020 election season or beyond. 

Will Astor is Rochester Beacon senior writer.

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