Fedweek

A federal court could rule at any time on a request by a number of unions representing federal workers to temporarily block the recent set of three executive orders on disciplinary and union matters.

The judge is considering union arguments raised in filings and in a hearing conducted last week that the orders violate labor-management portions of civil service law and employee due process rights. In particular, they argue that the orders restrict bargaining over matters for which the law allows negotiations; denies unions the resources they need to carry out their legal obligation to represent all bargaining unit members; and allows agencies to sidestep their obligation to bargain in good faith.

The Justice Department in contrast argues that the provisions are within the President’s discretion under civil service law and points out that different administrations have set varying policies over the years regarding the scope of bargaining. It also argued that the case isn’t yet ripe for decision because the normal administrative channels for resolving labor-management disputes haven’t been used.

At the hearing, the judge indicated an intent to rule soon on the union request to suspend the orders and then turn to the details of the arguments, a process that likely would consume many months and further court hearings.

Meanwhile, Sens. Ben Cardin and Chris Van Hollen, both Maryland Democrats, have written to the SSA to question its imposition of parts of the order overriding earlier negotiated provisions including by denying unions continued use of office space and access to agency email systems to communicate with employees.

Also, legislation (HR-6551) has been introduced to effectively prevent agencies from unilaterally cutting back on telework opportunities, as the Agriculture and Education departments have done by imposing their bargaining proposals as policy after shutting off negotiations on telework and numerous other topics covered by prior contracts. Several other major agencies including the VA also have unilaterally imposed various provisions of the orders, including restrictions on the amount and allowable uses of official time—which they recast as “taxpayer-funded union time.”

The AFGE union meanwhile has said that the FLRA has found sufficient evidence to charge Education with an unfair labor practice violation related to the breakoff of negotiations there. However, the FLRA currently is unable to bring a formal charge because it lacks a general counsel.