The Trump administration has asked a federal court to immediately lift a ban on a set of executive orders to restrict the role of unions in the federal workplace.
An “erroneous injunction” issued by a lower court is hampering bargaining at several major agencies, the Justice Department told the U.S. Court of Appeals for the D.C. Circuit in a motion filed Tuesday. The appeals court is “exceedingly unlikely” to agree to reconsider its ruling of last week that the lower court should not have considered the case, the motion said.
At issue are three executive orders issued in May 2018 that would, among other things, limit the topics on which bargaining will be held, set time limits on negotiations, and severely cut back “official time,” which is paid time that employees may use for certain union-related purposes.
The orders would also speed up in several ways the processes for disciplining federal employees, including restricting their chances to improve after being given notice of potential discipline based on their performance.
In a combined case brought by more than a dozen unions, a federal district judge last August issued an injunction against major parts of the orders, saying they overstepped the president’s authority under civil service law.
A three-judge panel of the appellate court, though, ruled on July 16 that the unions should have first brought those arguments before the Federal Labor Relations Authority, which decides disputes between agencies and unions. It did not address the merits of the unions’ claims.
The appellate court did not lift the injunction immediately, giving the unions 45 days to ask for reconsideration by either the same panel or by all of the court’s judges collectively. The injunction further would remain in effect while the court decided whether to accept that appeal — and potentially much longer until a new decision is made.
In its motion Tuesday, first reported by Federal News Network, the Justice Department said the government is being “irreparably harmed by conducting collective bargaining under the restrictions of the erroneous injunction.”
The motion said that in ongoing negotiations at agencies including the Office of Personnel Management, the Department of Veterans Affairs and the Department of Housing and Urban Development, agency officials are “currently operating under an injunction that a panel of this Court has unanimously held must be vacated.”
That “creates uncertainty for agency negotiators who, as a matter of independent judgment and discretion, may wish to take the same course that had been required by currently-enjoined provisions of the Executive Orders,” such as refusing to bargain over subjects that by law are negotiable at management’s discretion, the motion said.
National Treasury Employees Union president Tony Reardon said the union will ask the court to deny the government’s motion and also will appeal last week’s decision.
“In the meantime, it is clear that the administration is all too eager to ignore Congress and allow the president to single-handedly obliterate federal civil service laws and weaken the collective bargaining rights of our nation’s civil servants,” he said in an emailed statement.
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