Two years after the Trump administration issued three executive orders on labor-management and disciplinary policies, numerous disputes remain pending over those provisions, with final resolution of the exact meaning for agencies, unions and individual employees still potentially far off.
In the latest decision in the many legal challenges that have arisen over the order, an arbitrator ruled in favor of the AFGE union, which argued that the VA violated an existing contract when it unilaterally implemented some of the terms of the orders, including provisions involving official time. That case involved actions taken before a federal court issued an injunction that lasted about a year before being lifted last fall; a second case challenges the VA’s actions since then.
Also recently an arbitrator similarly ruled in favor of the Association of Administrative Law Judges, which contended that the SSA did not meet bargaining obligations by withholding information related to management’s positions on issues including telework and the potential length of a new contract.
Numerous other disputes involving other agencies and other unions also continue at various stages of the process, some of them potentially headed to federal court. Already pending in court is a challenge to the legitimacy of the Federal Service Impasses Panel, which has ruled in favor of management in a string of cases in which unions assert that agencies failed in their duty to bargain and then declared an impasse.
Those lawsuits contend that the Panel’s decisions should be declared void because the members should be subject to Senate confirmation and not directly politically appointed. In the latest development in one of them, a federal court has been asked to issue a temporary injunction against the Panel.
Also under dispute is a mid-2017 law affecting only the VA, giving management a stronger hand over disciplinary policies there. In the latest decision regarding that law, the FLRA recently reaffirmed its earlier ruling that the VA had failed to meet its obligation to bargain with the AFGE over the “impact and implementation” of the law by putting its terms into effect immediately.
The VA-specific law was widely seen as a potential model for enacting similar changes for certain other agencies or even government-wide, although that has not happened to date.