Fedweek

A federal appeals court has sided, although for now only on procedural grounds, with the Trump administration in a suit by a number of federal unions challenging the three executive orders issued last year on union-related and employee disciplinary policies.

A three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit agreed with the administration that the dispute over the orders should have gone first to the FLRA, not to a federal district court that last August issued an injunction against key parts of those orders. That injunction remains in effect for the time being, pending a possible review by the entire appeals court.

In sum, the orders 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.

Before both levels of the courts, the administration argued that the Civil Service Reform Act designated the FLRA as first stop for unions and agencies to resolve such disputes, with the potential for moving into the federal courts afterward. The unions responded that they would suffer harm before the FLRA could act and that only the federal courts could address some of their claims.

The lower agreed with the unions and blocked provisions aiming to restrict the matters that agencies will negotiate over, as well as to restrict official time, on-the-clock time for employees to spend on certain union-related matters. However, the lower court left in place numerous other provisions, including most of those involving disciplinary processes.

The appeals panel agreed with the administration, though, saying that under its precedent the unions “must pursue their claims through the scheme established” by the Reform Act. They “can ultimately obtain review of and relief from the executive orders by litigating their claims through the statutory scheme in the context of concrete bargaining disputes,” it said.

The court also rejected the union argument that the FLRA does not have authority over all of the wide range of issues the orders cover. It said for example that if an agency follows the provisions for setting goals to be achieved in bargaining such as limiting available official time, a union could bring an unfair labor practice complaint and the FLRA could rule against the agency.

Similarly, it said, a union could bring such a complaint if the agency refused to bargain over topics on which the law requires negotiations, or even over topics in which bargaining is only permissible. FLRA decisions in turn are reviewable by the federal courts, it added, so the unions would not be losing access to the courts.