Fedweek

Washington DC, June 2019: NTEU and AFGE federal workers at a joint rally protesting a Trump Administration plan to merge OPM and GSA, and move OPM's workforce policy functions to the White House. Photo by the AFGE.

President Trump’s three executive orders to restrict union and employee appeal rights would result in “chaos” in the federal workplace and irrevocable harm to both unions and individuals if left in place, a group of unions has said in their latest legal challenge to those orders.

Requiring that challenges to the orders go first to the FLRA, as a panel of an appeals court has ruled, would result in “piecemeal and protracted” litigation and for the meantime “the contested provisions of the orders would remain on the books and be a source of workplace disruption for federal agencies and their employees,” the unions said in asking for a review by the full Court of Appeals for the District of Columbia Circuit.

“Simply stated, chaos would occur throughout the government for an indefinite period of time” as agencies carry out the orders and “during that time, the President would be free to disregard the statute that Congress wrote in favor of the one that he wrote, without fear of judicial review in the near future. And, when judicial review finally arrives, it would not undo the irreparable harm being done in the meantime.”

The unions are seeking to keep the dispute in the federal court system, where a district judge a year ago issued an injunction against the key parts of the orders. A more recent decision by a panel of the appeals court held that any challenges must first be brought before the FLRA. The injunction remains in effect while the court decides whether to take the case—and if it does accept, the court likely would extend the injunction further.

Among the orders’ impacts on employees, the unions argue, would be to bar unions from using official time to work on grievances on behalf of employees in their bargaining units. That would “profoundly dilute the negotiated grievance procedure to prohibit the types of grievances that are of critical importance to employees.

“For example, challenges to performance reviews and incentive pay would no longer be permitted. Once a union loses the opportunity to represent an employee faced with a discriminatory, unfair, or unwarranted agency action in one of these areas, that opportunity is lost forever,” it said.

In turn, the brief argues, “Union membership would be of less value to employees because unions would not be able to help them in ways that they have been previously able to do. This would inevitably cause membership to drop. The decrease in membership, in turn, would cause the unions financial loss that can never be recovered.”