Fedweek

Washington, DC: Department of Justice headquarters building. DOJ has asked the federal appeals court in the District of Columbia lift an injunction on executive orders to restrict bargaining and employee appeal rights.

Federal unions pursuing a suit against the administration’s three 2018 executive orders to restrict bargaining and employee appeal rights have asked that the injunction a lower court issued be kept in effect while the case continues in the legal process.

The request was a response to a recent bid by the Justice Department to have the federal appeals court in the District of Columbia lift the injunction in light of the most recent ruling in the case. The lower court a year ago barred the main parts—but not all—of those orders from taking effect on grounds that they violate union rights under the 1978 Civil Service Reform Act. The injunction bars agencies from carrying out provisions including restrictions on the amounts and allowable uses of union time and on union access to agency working space and equipment; the subjects over which agencies will negotiate; and the opportunities for employees to improve before being disciplined on performance grounds.

However, an appeals panel ruled last month that the case should have been brought first before the FLRA instead. Under its rules, the injunction remains in effect pending a possible bid by the unions to ask the court to rehear the case; that request is expected within the upcoming weeks. If the court agrees to reconsider the suit the injunction could remain in effect indefinitely while the next legal round is under way.

The Justice Department earlier asked the court to bypass its standard practice and lift the injunction immediately, saying that uncertainty over the affected provisions is hampering bargaining in several major agencies. However, in their response, the unions have now said that the injunction “simply maintains the status quo put into effect by Congress in 1978 through its statutory collective bargaining scheme. There is no harm, irreparable or otherwise, from keeping that 40-year status quo in place while the normal appellate process plays out.”

The appeals court has no deadline to decide on those arguments.

Meanwhile, unions continue to argue that agencies are behaving as if the injunction never had been issued, by taking the disputed positions during bargaining and implementing those positions after declaring talks at a deadlock. In the latest development, most Senate Democrats sent a letter to the VA objecting to its bargaining practices; most House Democrats had sent a similar letter earlier, and recently Senate Democrats did the same with the SSA. Unions have filed complaints before the FLRA against numerous agencies.