The saga of the fight by federal employee unions to overturn the Executive Orders issued by President Trump continues. In the latest installment, the attempt by federal employee unions to delay implementation was denied. The unions were hoping to have the initial decision by a three-judge panel for the Court of Appeals decision reviewed by the entire court.
The Executive Orders were issued by President Trump
There is no doubt that there will be additional litigation. The unions are trying to delay implementation of the Orders until after the next election, presumably in the hope that a Democrat becomes president and would cancel the Orders.
It is likely one or more of the unions will seek review by the U.S. Supreme Court. For good measure, it is likely the same case will be filed in other courts hoping for a favorable decision.
The Executive Orders are likely to be implemented throughout the federal government in the next few days unless the unions are able to come up with a plan in obtaining another injunction issued by another court to try and further delay implementation.
A strong reaction from federal unions is predictable as the Orders will impact their ability to operate using government funds for official time and government facilities. This was the public comment by David Cox, the National President for AFGE:
The court’s decision not to grant an en banc rehearing of this vitally important case with far-reaching effects across the federal government is a sad day for the country. 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.
Role of the FLRA
A federal appeals court decision has now determined the issue on the applicability of the Orders should be referred to the Federal Labor Relations Authority (FLRA). The Appeals Court decision overturned the decision of a lower court. But, while the lower court’s decision was overturned, the injunction against implementing the Executive Orders has still been in place.
The FLRA has the jurisdiction to address the unions’ claims in the form of unfair labor practice allegations (ULP) or negotiability appeals. The Executive Orders will have the effect of a government-wide regulation, so it is likely that numerous issues will be litigated as negotiability cases.
Federal employee unions usually prefer unfair labor practices. They do not require as much work as negotiability cases because of how the federal labor relations system is structured. As a result, it would not be surprising if a large number of ULP’s are filed.
No doubt, there will be many cases filed. In negotiations with agencies, unions have been using stonewalling tactics to delay implementing changes, and agencies are implementing changes in employment conditions when the unions refuse to negotiate. Any of these situations will lead to more unfair labor practices being filed, litigated and decisions will eventually be issued. In short, the litigation is likely to continue for some years before resolution.
Also, there is no General Counsel at the FLRA and no indication as to when this position will be filled. No ULP complaints are issued in the absence of an FLRA General Counsel so this means more delays in the final resolution of these issues.
There is currently no end in sight on the fate of these Executive Orders. The litigation will continue for the foreseeable future.
It is also possible the Executive Orders will be implemented in the next few days unless another injunction pops up from another court as the unions search for a favorable forum to challenge what they perceive as a threat to their future power in agencies.