Fedweek

Unions has until the end of the month to appeal a ruling paving the way for agencies to carry out parts of three executive orders.

Federal employee unions and the Trump administration are increasingly looking to outside bodies to decide disputes between them, with several new legal cases recently filed to join one already in progress for more than a year.

In that suit, a group of unions has until the end of the month to file an expected appeal of a ruling that could allow agencies to carry out parts of three executive orders that have been blocked almost since they were issued in May 2018.

The federal appeals court in the District of Columbia is to be asked to reconsider its ruling of last month that the unions should have gone first to the FLRA in their challenge to language in those orders to restrict policies that are subject to negotiations and the official time and other resources traditionally provided by agencies to unions.

For now at least the injunction issued last August by the federal district court in the District of Columbia against those provisions—as well as several pertaining to employee rights in disciplinary proceedings—remains in effect. The appeals court in its ruling last month refused the Justice Department’s request to lift the injunction immediately, leaving it in place as is the court’s standard practice during the period the losing side has to ask for reconsideration. The court typically denies such appeals, however.

Separate challenges

Meanwhile, the SEIU union has filed a separate challenge to the orders in a different federal district court, the Western District of New York. Because that court would not be bound by the D.C. circuit court’s ruling, that raises the possibility of a separate injunction being issued there, independent of the outcome of the earlier case.

Separately, the AFGE filed a suit challenging the legitimacy of decisions by one of the FLRA’s sub-agencies, the Federal Service Impasses Panel. The FSIP is designed to resolve the types of disputes that are arising over the orders involving the scope of bargaining and procedures. The suit contends that a decision by the FSIP in a dispute between the union and the SSA should be ruled invalid because the FSIP does not have the number of members required by law, and that the law further requires members to be confirmed by the Senate, not directly appointed by the White House as were current members.

At the same time, the administration has asked the FLRA to decertify the National Association of Immigration Judges, asserting that immigration judges are management officials not eligible for union membership because they make policy decisions. A ruling that decision-making amounts to management could be the prelude to attempts to do the same regarding other unions.