The Solidarity Docket
August 26, 2026
Arbitrators continue to sustain telework and return to office grievances, with two more awards issued against the Department of Agriculture in the last week. Three other developments go to whether federal workers can reach a decisionmaker at all: a new rule letting a mediation agency screen arbitration panel requests, an argument from the FLRA that no court may review how it decides representation cases, and a Justice Department opinion stripping the Foreign Service Grievance Board of final authority over the grievances it hears.
Unions Have Won Nearly Every Telework Grievance Decided Since January 2025
Two independent arbitrators ruled against the Department of Agriculture in the last week, both holding that the agency violated its collective bargaining agreements when it revoked telework and remote work agreements. The awards issued five days apart and involved separate AFSCME locals at separate USDA components.
By our count, unions have now won 18 of the 20 telework and return to office grievances decided on the merits since the January 2025 Presidential Memorandum, across fifteen agencies and six labor organizations.
The FLRA has not reviewed exceptions to any of these awards, and neither USDA arbitrator has released jurisdiction. In general, federal sector arbitration awards become final 30 days after issuance, with that time allotted to give the non-prevailing party an opportunity to seek review at the FLRA.
Unions Broaden Their Challenge to FMCS Panel Screening
Four unions have amended their complaint against the Federal Mediation and Conciliation Service to reach the interim final rule the agency issued after the lawsuit began. The American Federation of Government Employees, the National Treasury Employees Union, the National Federation of Federal Employees, IAM, and the International Federation of Professional and Technical Engineers filed the amended complaint on August 21 in the District of Columbia.
The unions seek vacatur of the rule on two independent grounds, that it issued without notice and comment and that it is arbitrary and capricious, along with vacatur of the April memorandum and an order requiring FMCS to honor unilateral requests. Where a collective bargaining agreement names FMCS as the sole source of arbitrators, a party that cannot obtain a panel cannot move a grievance to arbitration. The case’s initial scheduling conference is September 23. Comments on the rule close September 3.
FLRA Argues That No Court Can Review How It Decides Representation Cases
The Federal Labor Relations Authority has asked a federal district court in Massachusetts to undo the ruling that vacated its representation case rule. The Authority does not argue that the ruling was wrong on the merits. It argues that the court never had the power to hear the case at all, and that no court does.
The vacated rule stripped regional directors of their authority to decide representation cases and eliminated the internal appeal that followed those decisions. The court held in June that both the substance of the rule and its immediate effective date were arbitrary and capricious.
The rule remains vacated while the motion is pending, and the Authority has separately asked the court to stay its judgment. Briefing closes this week.
Justice Department Opinion Undercuts the Foreign Service Grievance Board
The Justice Department’s Office of Legal Counsel concluded on August 20 that the Foreign Service Grievance Board cannot issue a decision the Secretary of State is bound to follow. The Board hears grievances from members of the Foreign Service and can reinstate a member with back pay, retain a member facing separation, reverse a denial of pay or benefits, correct a personnel record, and award attorney fees. The statute makes its decisions final, subject only to judicial review. The opinion reasons that Board members are inferior officers, appointed by the Secretary and removable only for cause, and that under United States v. Arthrex, Inc. an inferior officer may not exercise executive power that no politically accountable officer can review.
The Board has told Congress that the terms of its remaining members expire October 1 and that it will cease to function until the Secretary appoints new members, and that new filings in the first half of 2026 ran nearly three times the level of the same period last year, as Government Executive has reported. The American Foreign Service Association said an independent review process cannot provide the same protection if the department whose action is challenged can overrule the decision.
NTEU Challenges the IRS Suspension of Advanced Leave
The National Treasury Employees Union sued the Internal Revenue Service on August 20 in the District of Columbia over a directive ending advanced annual and sick leave. The IRS Human Capital Office sent the directive to all employees on July 24, 2026, effective the same day. The agency will accept no further requests, and all requests pending on July 24 were denied. Balances already granted stand, but the directive requires repayment of outstanding balances, including at separation in most instances. The Social Security Administration sent an identically worded message the same day, and the same official leads both agencies.
The complaint pleads two theories. The first is that the directive is ultra vires. The IRS Commissioner is a principal officer whom the President must nominate and the Senate must confirm, and the official now leading the agency holds a Chief Executive Officer title created in October 2025 that appears in no statute. The second is that the directive is arbitrary and capricious, because it denies pending and future requests across the board with no individualized assessment, disregards reliance interests, rests on conclusory assertions without supporting data, and does not explain the departure from prior practice.
Employees who requested advanced sick leave for medically necessary absences before July 24 are now taking leave without pay instead.
OPM Appeals Rules Take Effect September 2
Four OPM rules covered in the August 11 edition take effect next week. Reduction in force actions, probationary and trial period actions, and suitability actions taken on or after September 2, 2026 are no longer appealable to the Merit Systems Protection Board. They go to OPM instead, to its Merit System Accountability and Compliance office or its Suitability Executive Agent, under separate procedures and timelines. The change also removes the mixed case election for those three categories, so an employee alleging discrimination or retaliation in connection with one of them no longer chooses between filing first with the Board and filing first with the Equal Employment Opportunity Commission. The Partnership for Public Service has published a question and answer with the former Vice Chairman of the Merit Systems Protection Board covering forum selection and filing deadlines under the new structure.
In Solidarity,
Suzanne Summerlin General Counsel Rise Up: Federal Workers Legal Defense Network
