It’s been just days since President Trump signed an unprecedented executive order aimed at stripping two-thirds of the federal workforce of their collective-bargaining rights, but both the White House and federal employee unions are already trading lawsuits over the edict.
Last Thursday, Trump signed an executive order citing a rarely used provision of the 1978 Civil Service Reform Act to ban unions at the Defense Department and other federal agencies under the guise of national security. Similar exemptions have existed across decades of executive orders—and several military conflicts—before Congress codified federal employees’ rights to join and be represented by organized labor, but no president has gone further than exempting the intelligence community and some law enforcement positions from those rights.
That same night, federal agencies jointly filed a lawsuit against the American Federation of Government Employees, the nation’s largest federal employee union, in the U.S. District Court for western Texas’ Waco division. The filing requests a declaration that Trump’s order is lawful, greenlighting agencies to unilaterally repudiate their collective bargaining agreements with unions.
“The court should declare that plaintiff agencies do have the power and authority under the executive order to rescind or repudiate the subject CBAs,” the government wrote. “The executive order was lawful under [Title 5 of the U.S. Code]. Through the executive order, the president has determined that plaintiffs agencies have ‘as a primary function intelligence, counterintelligence, investigative or national security work.”
The Waco-based court has just one district jurist: Judge Alan Albright, a Trump appointee. The decision to file in that court was made just weeks after President Trump issued a memo to Attorney General Pam Bondi instructing her to pursue monetary penalties against organizations that file unsuccessful lawsuits that are deemed to have been subject to “court-shopping,” a practice used on both the right and the left to have their cases heard before judges that are ideologically friendly to their arguments. A second lawsuit, against the National Treasury Employees Union, was filed Friday in the Eastern District of Kentucky, another court with only Republican appointees.
Experts have warned that the Trump administration has a steep evidentiary standard to prove that union representation hinders national security, particularly at agencies like the Veterans Affairs Department and Environmental Protection Agency, whose connection to national security are more tenuous. While the agencies’ lawsuit highlights some ways that domestic operations touch on security issues, such as Food and Drug Administration food inspectors’ role combatting the potential for poisoning Americans’ food supply, examples of how unions have tied the administration’s hands are mostly related to telework and how long agencies must give poor performing employees to improve before firing them.
“In short, unions that oppose an administration’s agenda can freeze the status quo in place for a year or more by demanding midterm bargaining and dragging it out,” the government wrote. “Unions hostile to the president’s agenda can thus block or at least significantly delay the implementation of management polices that he considers necessary to ensure the effective and efficient operations of agencies—including, as relevant here, agencies with investigative and national security responsibilities. That, in turn, undermines the president’s authority to supervise his agents and threatens our nation’s security.”
NTEU on Monday filed its own lawsuit challenging the president’s executive order in the U.S. District Court for the District of Columbia, asserting that the edict conflicts with federal labor law and constitutes “political retribution” for the union’s protected First Amendment speech.
“In justifying the executive order, the [White House’s] fact sheet states that ‘certain federal unions have declared war on President Trump’s agenda,” the union wrote. “[NTEU] is one of the federal unions that has fought back against President Trump’s agenda. It has filed lawsuits in federal district court against [Schedule F]; the administration’s attempt to dismantle the Consumer Financial Protection Bureau . . . and the administration’s attempt to hobble the federal civil workforce overall through mass firings of probationary employees, reductions-in-force, and a pressure campaign to get federal workers to resign their positions.”
The labor group also argued that one motivation for Trump’s order is simply to allow agencies to ignore union contract provisions governing reductions in force.
“The OPM guidance on the executive order shows that the president’s primary motivation for the mass exclusion of agencies from the statute’s coverage is to make their employees easier to fire,” NTEU wrote. “The first section of the OPM guidance falls under the heading ‘Performance Accountability,’ which is aimed at ‘facilitating the separation of underperforming employees.’ . . . OPM thus presents the reason for the president’s mass exclusion of agencies from the statute’s coverage: nullifying those agencies’ collective bargaining agreements, so that they will no longer impede firing employees.”
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