A federal appeals court has lifted – effective October 2nd – an injunction that had been in effect more than a year against key parts of executive orders on union and disciplinary matters, putting those orders into full effect—and shifting the dispute over them from the federal courts to the FLRA.
The action by the federal Court of Appeals in the District of Columbia was expected in light of that court’s recent refusal to reconsider a decision by a panel of that court. The panel had ruled that union-sponsored challenges to the set of three orders issued in May 2018 should have gone to the FLRA first, not directly into the federal district court which issued the injunction.
Unions sponsoring the suit has said they are still weighing possible further court action—which would mean an appeal to the U.S. Supreme Court—but meanwhile they are stressing that the appeals panel’s ruling was only procedural. The court did not address their basic contention that the Civil Service Reform Act requires negotiating over many of the topics that the orders put solely in management’s hands.
Unions now must take that argument to the FLRA, where a number of cases already are pending against agencies that have acted unilaterally, even with the injunction in place, to restrict previously negotiated policies on matters such as official time, alternative work schedules and telework. FLRA decisions can in turn be appealed into federal court, likely putting many of the same issues back in the courts if the labor authority rules against unions.
But in the absence of a decision against the contested provisions at one level or the other, agencies are now free to carry out more restrictive policies in areas including the topics over which they will negotiate, grievance procedures and accommodations to unions such as official time and free use of office space and access to agency equipment.
OPM recently proposed rules to carry portions related to disciplinary matters that were not barred by the injunction, stressing the wide scope of management’s discretion to impose penalties up to firing for misconduct and limiting chances for employees to improve their performance before being disciplined on those grounds.