Some agencies took a wait-and-see approach but several such as the VA moved aggressively. Image: Pamela Au/Shutterstock.com
By: FEDweek StaffAlthough federal employee unions have already started to press agencies to comply with a federal court’s ruling against key parts of President Trump’s orders on federal disciplinary and bargaining matters, the dispute appears to be far from resolved.
Update: OPM has issued a memo saying that provisions of the EOs that were enjoined by the court should be considered rescinded, while OPM guidance relating to the still effective provisions remains in place.
As an initial matter, the administration could challenge the ruling into federal appellate court. It would be up to the appeals court to decide whether to suspend the district court’s decision pending a decision on the appeal. While the process reached a conclusion at the district court level in about three months—unions filed their suits virtually immediately after the orders came out May 25—an appeal, if invoked, typically takes much longer.
Further, agencies have varied substantially in how they carried out the orders. Some essentially took a wait-and-see approach for various reasons including the filing of the suit but several—including the VA, HHS and SSA—moved aggressively. The VA further withdrew from a memo of understanding with several unions on the allowable scope of grievances on behalf of medical personnel.
In certain components, at least, such agencies have moved to expel unions from agency space they previously had provided for free and to limit their access to agency computer systems. Several also imposed as final agency policies rolling back previous agreements on matters such as telework and alternative working schedules, citing instructions in the orders to do so if unions were not meeting their obligations to bargain in good faith.
Unions have said that in the early days following the court decision, agencies have not been responsive to their requests to reverse those actions; the unions already are considering further legal action, such as a request that the court issue orders compelling agencies to comply.
The unions already have unfair labor practice complaints pending at the FLRA asserting it was the agencies that failed in their obligations. However, the FLRA currently has limited authority to act because it lacks a general counsel. Separately, even before the executive orders were issued, the Education Department had followed a similar strategy.
Further complications may lie ahead as well regarding the disciplinary policies, for example a provision that was left in place that agencies need not use progressive discipline in deciding a choice of penalties for misconduct. However, while weighing the agency’s decision on an appeal the MSPB traditionally has examined whether progressive discipline was used. For the present at least the MSPB governing board similarly would be unable to decide on a challenge to that policy change since it lacks a quorum.
