Fedweek

Even though a federal appeals court has ruled that a district court erred in considering a challenge to the administration’s orders on disciplinary and union policies, the injunction the lower court issued against the main parts of those orders could remain in effect through next month at least—unless the court grants a newly filed request by the Justice Department on behalf of the White House to lift the injunction sooner.

A panel of the appeals court found last week that federal unions should first have brought their challenge to the orders at the FLRA and that the district court erred in considering it—agreeing with the administration on both points. The reviewing court took no position, however, on the lower court’s rulings in favor of the unions—that portions of the orders violated provisions of law governing bargaining and many other union-related matters, as well as some restrictions on employee rights in discipline.

Under the appeals court’s procedures, the losing side has 45 days ask for reconsideration, which the unions say they will request, either by the same three-judge panel or by the full court. The panel’s decision does not take effect until the court decides whether to rehear a case, meaning in this case that the injunction remains valid until then.

The Justice Department this week asked the court to lift the injunction immediately, saying that otherwise it could remain in effect “indefinitely” while the legal process plays out. The unions likely will oppose that bid.

A request for rehearing by the same panel commonly occurs when one of the judges dissents from the ruling; in this case, though, the panel’s decision was unanimous. The court’s rulebook says that requests for rehearing by the full court “are frequently filed but rarely granted.” If the unions make such a request and it is granted, the injunction would continue; if it is denied, the injunction would be lifted and the unions would then have 90 days to appeal to the U.S. Supreme Court.

The unions continue to complain that some agencies are acting as if the injunction never had been issued, by imposing new and more restrictive policies on matters such as telework, alternative working schedules, and official time, equipment and office space for unions. The latest was the EPA, where such restrictions took effect this week. Unions have filed unfair labor practice complaints at the FLRA against the EPA and a number of other agencies that also invoked such policies after declaring bargaining at an irreconcilable impasse.

Language in the House-passed general government spending bill (HR-3351) would prevent agencies from imposing changes to previously negotiated policies unless an agreement was reached in new bargaining or unless an outside party such as the Federal Service Impasses Panel imposed them. A White House policy statement objected to that language; the Senate has not started writing its version of that bill.