Appeals court declines review of workforce order lawsuit

The Trump administration has for now prevailed in court in its bid to reshape the federal workplace through executive order.

The U.S. Court of Appeals declined to reconsider its ruling dismissing a union lawsuit challenging three executive orders affecting the federal workforce, clearing the way for new rules governing union contract negotiation and the status of "official time" -- time spent conducting union business while on the job -- to take effect.

The decision by the court not to grant an "en banc" or full-court review of a three- judge decision from July punts the union lawsuit over the three orders to the jurisdiction of the Federal Labor Relations Authority. The appeals court ruling, which overturned a district court decision invalidating some aspects of the executive orders, did not rule of the merits of the unions' case but rather turned on a question of jurisdiction. The unions may return to the courts to appeal FLRA decisions.

The court decision, "sets the table for years of chaos in the federal sector as we have to take our issues, piecemeal, through the [FLRA]," said Tony Reardon, president of the National Treasury Employees Union. "We still believe that these orders violate existing federal law and we will not relent on that argument, either at the FLRA or subsequently back in the courts."

In the meantime, a court injunction blocking the implementation of the three executive orders is expected to be lifted, giving the Trump administration and the Office of Personnel Management the ability to write new rules and guidance for agencies conducting contract negotiations with federal employee unions.

OPM issued guidance on implementing the order on union negotiations and official time rules in July 2018. That guidance was withdrawn in the wake of reversals in court.

Additionally, last week OPM published draft rules that covered aspects of the orders not subject to the judicial injunction, including a ban on the removal of adverse information in an employee file as a result of a settlement, a nudge for managers to review the performance of probationary hires before they obtain full civil service status and a push to eliminate one-size-fits all "punishment tables" for misconduct.

"While we review our options, hundreds of thousands of federal government workers will suffer as their access to union representation at the worksite is stripped away by the implementation of President Trump's union-busting executive orders," J. David Cox, national president of the American Federation of Government Employees, said in a statement.