A three-judge panel appeared skeptical during an April 4 hearing of arguments from the Trump administration that they should overturn a lower court’s ruling striking down significant portions of three executive orders affecting the federal workforce.

Unions can’t get relief from the Federal Labor Relations Authority on the larger question of whether the orders violate the Civil Service Reform Act’s labor-management provisions, Judges Thomas Griffith, Raymond Randolph, and Sri Srinivasan of the U.S. Court of Appeals for the District of Columbia Circuit told Joseph Busta, a Department of Justice attorney who argued on behalf of the administration.

Federal worker unions can go to the labor panel if they believe that specific actions taken by agencies in response to the orders violate the CSRA, Busta said. The court should allow this process to take place rather than upholding an August 2018 ruling from Judge Ketanji Brown Jackson of the U.S. District Court for the District of Columbia that struck down large portions of the orders, he said.

The orders issued by President Donald Trump last May made it easier to fire federal employees, required agencies to review existing labor agreements for cost savings, and restricted federal workers who act as union officials from using more than 25 percent of their work hours for that purpose. Together they would “eviscerate” federal workers’ collective bargaining rights, which isn’t permitted by the CSRA, Jackson said in her ruling.

There are about 2.1 million civilian federal employees, including roughly 1.2 million unionized workers. The FLRA is responsible for overseeing the government’s labor relations program.

Leave It With Labor Panel?

Griffith and the two other appeals court judges also took the opposite tack during the April 4 hearing and questioned attorneys for the labor unions on why they didn’t just go to the FLRA if they have problems with the orders. Gregory O’Duden, in-house counsel for the National Treasury Employees Union, and Andres Grajales, in-house counsel for the American Federation of Government Employees, said the FLRA doesn’t have the authority to rule on whether the executive orders are permitted by the CSRA.

There’s also no guarantee that the FLRA will act on unfair labor practice charges brought by federal employee unions, Grajales told the panel. “Not every FLRA action yields an FLRA order,” he said.

It would be “malpractice” for union attorneys to look to the FLRA for relief from the Trump orders, O’Duden told reporters after the hearing. Among other things, the FLRA doesn’t have a general counsel in place to bring charges against agencies, he said. Trump on March 26 nominated Catherine Bird to be the FLRA’s general counsel.

It’s tough to predict how judges will rule based on the questions they ask during oral argument, O’Duden said. The fact that the judges asked as many technical questions as they did about the FLRA process is worrisome, he said, adding that he expects the panel to rule on the case before the end of June.

Griffith was appointed by President George W. Bush, Randolph by President George H.W. Bush, and Srinivasan by President Barack Obama.

The case is AFGE v. Trump, D.C. Cir., No. 1:18-cv-01261, oral argument 4/4/19.