Labor Panel Review Complicates Trump Workforce Cut Challenges

A labor board threatens to erect new hurdles for unions fighting President Donald Trump’s moves ending bargaining rights for many federal workers—if a US appeals court sides with the government.

The US Court of Appeals for the District of Columbia Circuit signaled Monday it is seriously considering the Trump administration’s argument that challenges to executive orders that ended union rights for roughly one million federal workers should first be routed to the Federal Labor Relations Authority, an administrative panel, before they can reach the courts.

A raft of cases challenging the administration’s efforts to shrink the federal workforce and cut union powers could shift from the courts to the FLRA, potentially delaying a resolution. Attorneys point out that the FLRA doesn’t have the authority to answer some of the legal questions being raised in the lawsuits against the Trump administration.

“The authority shouldn’t be answering constitutional questions, because nobody has given the agency any authority to say what the Constitution is, and if they had that would probably be invalid,” Alexander MacDonald, a management-side attorney at Littler Mendelson, said.

It comes as Republicans appear likely to retake the majority on the FLRA after months of deadlock, with the Senate planning to vote on GOP nominee Charles Arrington this week.

The legal battle at the DC Circuit centers around Trump’s executive orders stripping collective bargaining rights from many workers by declaring that some civilian agencies, such as the Treasury Department and the Department of Veterans Affairs, dealt with national security issues. The cases involve sweeping constitutional questions around the reach of the president’s national security powers.

Challenge of Venue

Before courts can address the substance of Trump’s argument, they must determine how to proceed.

Unions argued that the claims should go directly to federal courts, a view endorsed by Judge Paul Friedman of the US District Court for the District of Columbia, who temporarily blocked the termination of several unions in April. The DC Circuit allowed the terminations to continue as the case proceeds.

Trump exceeded his national security powers—and destroyed the FLRA system by disbanding the unions altogether, the unions argued. Because the government no longer recognizes the unions, they claimed, the administrative system for solving labor-management disputes no longer applies.

The US Department of Justice has argued several times in court that cases must first be heard by the FLRA and the Merit Systems Protection Board, as Congress intended in the Civil Service Reform Act, under which the FLRA was founded in 1978.

Neomi Rao, one of two Republican-appointed judges on the three-member appellate panel, on Monday questioned why the court should deviate from the FLRA scheme, noting that parties can appeal to the court afterward.

“Why would that not be sufficient in terms of meaningful review?” Rao asked.

FLRA Spokesman Eric Prag declined to comment on ongoing litigation.

It’s tricky for administrative boards like the FLRA to take up cases involving constitutional issues where it lacks jurisdiction, legal scholars say.

“There are two general principles here,” MacDonald said. “One, the agency has no authority to answer constitutional questions. But, two, you have to raise all your arguments to this agency, which leads us to this Kabuki dance we see in so much agency litigation when there are constitutional questions.”

Despite arguing for more cases to be heard by the FLRA, the Trump administration has taken steps to weaken the panel. Trump fired Grundmann at the start of his second term, along with leaders of several independent agencies.

The administration has nominated Charlton Allen, a political consultant and conservative podcast host, to serve as the FLRA’s general counsel, a role also vacant.

The Supreme Court’s conservative majority signaled this month it’s poised to side with Trump regarding his authority to fire ostensibly independent agency heads at will. That suggests the court may give Trump more authority over the wider workforce as well.

“My hunch is that the president will prevail,” said Pat Pizzella, a former Republican FLRA member and deputy labor secretary during Trump’s first term. “A unitary executive should be able to manage the federal workforce.”