Fedweek

Provisions involve which matters agencies will negotiate over including opportunities for employees to improve before being disciplined on performance grounds.

The Trump administration has told an appeals court that a federal district judge erred in finding that key parts of three executive orders on disciplinary and bargaining matters violate federal labor-management law and that any challenge to the orders belongs in the FLRA, not in the federal court system.

In a filing before the Court of Appeals for the District of Columbia Circuit, the Justice Department said unions are asserting that the orders exceed the President’s authority over bargaining under the parts of civil service law dealing with labor-management relations. “Congress has established an exclusive review mechanism for precisely that sort of claim, which must be submitted for administrative adjudication before the Federal Labor Relations Authority, followed by direct judicial review in the courts of appeals,” the brief says.

The administration had made much the same argument before the lower court which however rejected it and barred agencies from carrying out numerous provisions. Those involve which matters agencies will negotiate over and which can be resolved through grievance-arbitration procedures, the amounts and allowable uses of official time, opportunities for employees to improve before being disciplined on performance grounds, and more. Other parts of the orders, affecting matters such as the choice of penalties in misconduct cases, remain in effect.

The brief also repeats an argument it made to the lower court that the bargaining-related provisions merely set “reasonable goals” for agencies to achieve in bargaining. While the court had found that taking those positions would violate management’s duty under the law to bargain in good faith, the brief said it is the FLRA that “has the expertise to decide whether an agency negotiator will inevitably bargain in bad faith.”

A coalition of unions that brought the case now will respond to those arguments. The appeals court has not set a date for hearing oral arguments in the case; earlier it rejected the administration’s request to expedite the schedule so that arguments could be heard just after the turn of the year.