After largely lying dormant since last fall, disputes have revived over key federal workplace policies involving disciplinary policies and the role of unions.
At issue is a series of three executive orders issued last May restricting what agencies would agree to bargain over, the amounts and allowable uses of official time, and protections for employees facing discipline for alleged poor performance or misconduct. Several months later a federal judge held invalid many of those provisions, although certain others remain on the books.
Most recently, a federal appeals court heard oral arguments in the administration’s appeal of that decision. As it had before the lower court, the Justice Department argued that the orders were within a President’s discretion and that any challenge to them belongs at the Federal Labor Relations Authority, not in federal court. Federal unions repeated their position that the orders exceeded the bounds of the Civil Service Reform Act and that the FLRA has no authority to decide on the validity of executive orders.
The appeals court likely will not issue a decision for several months at least. Beyond that lies the prospect that the losing side would appeal to the Supreme Court, delaying resolution by another year or more.
The unions meanwhile are separately asserting that some agencies are setting policies—by refusing to bargain and imposing new contract language—that go beyond what is still allowed by the lower court’s order. Numerous such complaints are pending before the FLRA.
In one of the first to reach a decision, the Federal Service Impasses Panel, an arm of the FLRA, upheld the HHS in a complaint over its move to restrict telework and the allowable use of leave around the late-year holidays, among other contract changes. The NTEU union, which brought that complaint, said the prior policies will remain in effect, though, while other disputes remain pending.