Fedweek

A federal court has rejected the latest appeal in a union-sponsored suit against the three Trump administration executive orders on union- and disciplinary-related matters, with the unions saying they are now considering their next steps—which could mean an appeal to the U.S. Supreme Court.

The Court of Appeals for the District of Columbia rejected a bid by the unions to have all of its judges review a recent decision by a panel of three judges who held that the challenge should have been filed first at the FLRA, as the Trump administration argued, and not directly in federal court. A request for reconsideration by the full court is a routine step although one that only rarely is granted—especially when, as in this case, the panel’s decision was unanimous.

Initially, a federal district court had ruled that many of the provisions of the three May 2018 orders violated the Civil Service Reform Act by unilaterally setting policies in areas subject to labor-management negotiations under that law. It issued an injunction blocking provisions related to the allowable scope of negotiations, grievance processes, and accommodations provided to unions such as free use of agency working space and equipment and “official time” for employees with union roles.

That injunction has remained in effect for more than a year but could now be lifted at any time. That likely would mean that even if an appeal to the Supreme Court is filed, for the meantime unions would have to bring challenges to the contested provisions before the FLRA.

Unions already have started doing so in bargaining disputes with a number of agencies, but were hoping for one ruling by the federal court system rather than what they say will be piecemeal decisions from the FLRA—which in turn may be the subject of later suits. Meanwhile, a separate similar suit is pending in a different federal district court.

The OPM recently proposed rules to carry out most of the provisions of the orders that were not affected by the injunction, many of them stressing management’s discretion to order discipline up to firing in misconduct cases and limiting opportunities for employees to improve before being subject to discipline for alleged poor performance. Those rules are now in a period for public comment.