Fedweek

Federal unions say they will continue to fight three Trump administration orders on union and disciplinary matters in light of an appeals court ruling that the dispute belongs before the FLRA rather than in the federal courts, at least at this point.

The course is unclear for the present, however; the unions say they are looking at their options, most of which could stretch out the case for months at least.

According to the NTEU union, one of the sponsors, a lower court injunction against key provisions will remain in effect pending possible further action in the appeals court. That would be a review by the full court of the decision by a panel of three of its judges. Such requests are common after panel decisions but there is no requirement that the full court will agree to reconsider that decision.

After a final action by the full court—either a new decision or letting the panel decision stand by refusing to review it—the next step could be an appeal to the U.S. Supreme Court by the losing side. The high court, too, has discretion regarding whether to hear a case. If it accepts, a decision would not be likely until next year.

Meanwhile, unions already have filed numerous complaints at the FLRA, arguing that some agencies are imposing policies—by refusing to bargain at all, or by declaring negotiations and an irreconcilable impasse—as envisioned by the executive orders despite the injunction against those policies.

Among the barred provisions are those to: set time frames for negotiating ground rules and then for reaching a contract; ban agencies from bargaining over matters that are negotiable at management’s discretion; discontinue the long-standing practice of providing unions with free use of office space and agency equipment; limit official time to one hour per bargaining unit employee annually and further restrict its allowable uses; and exclude from negotiated grievance processes disciplinary actions, the assignment of performance ratings, or the award of any form of monetary incentive.

Among the provisions still in effect are that in deciding on discipline, agencies: should consider all of an employee’s past misconduct, not just similar misconduct; need not use progressive discipline; need not suspend an employee first if the infraction merits removal; and need not apply the same penalty that was used in a previous similar case involving another employee.