Fedweek

There has been an expectation all along that the losing side will appeal to the U.S. Supreme Court.

A year since the Trump administration issued a set of three executive orders on union and disciplinary related matters, the legal status of the main parts of those orders remains uncertain — although there is no uncertainty regarding the resulting increase in tensions between federal unions and the administration.

The three orders, if ultimately carried out to their fullest, would represent the most sweeping set of personnel policy changes since enactment of the 1978 Civil Service Reform Act. In sum, they would speed up disciplinary proceedings, give employees fewer rights in many cases, limit the scope of bargaining, and severely restrict official time, which is on-the-clock time for employees with union roles to perform certain union-related duties.

Almost immediately after the orders were issued in late May of last year a group of unions filed a lawsuit, which resulted in a late-August district court injunction against most of the major provisions, although leaving some in place. That decision is on appeal. A federal circuit court recently heard oral arguments and while there is no timetable for a ruling by that court, the IFPTE, one of the unions in the case, has suggested that a decision is imminent.

At both levels of the courts, the unions argued that the orders overstep the discretion the Reform Act gave to any administration, while the Trump administration argued that the Reform Act gives a President wide discretion over employee performance and conduct related matters and over labor-management issues apart from those it directly addresses.

There has been an expectation all along that the losing side will appeal to the U.S. Supreme Court, likely resulting in continued uncertainty for a number of months more, if not a year or more. Another possibility is that the dispute will be sent to the FLRA—the administration contends that the Reform Act gives that agency, not the federal courts, initial authority over the disputes—which potentially would start the process all over from the beginning.

Meanwhile, unions and some in Congress are continuing to assert that some agencies are handling negotiations and other labor-management relations as if the orders are still fully in effect. Numerous complaints have been filed at the FLRA regarding agency actions to restrict official time and union access to agency space and equipment and to restrict policies such as those on telework, work assignments and alternative work schedules that traditionally were governed by contract provisions.

In the latest of such complaints, the AFGE union asked the FLRA to rule that DoD failed to properly consult with the union over the planned transfer of some 1,200 IT employees from the Defense Contract Management Agency to the Defense Information Services Agency. Other major agencies named in such disputes include VA, HHS, SSA, DHS, Education and Agriculture.