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President Trump issued a sweeping executive order removing a large chunk of the federal government from the requirement of collective bargaining with employee unions. These exclusions include the Department of State, the Department of Defense, the Department of Justice, and the Department of Veteran Affairs, among others.

After issuing the executive order, the federal government preemptively filed two lawsuits seeking declaratory judgments that agencies may terminate collective bargaining agreements pursuant to the order. The first Department of Defense v. AFGE, was filed in the Western District of Texas, and the second, Department of Treasury v. NTEU Chapter 73, was filed in the Eastern District of Kentucky. Shortly thereafter, unions filed their anticipated challenges. The National Treasury Employees Union filed a lawsuit in the District of DC, and a group of federal unions, including the American Federation of Government Employees, filed suit in the Northern District of California.

The executive order and related guidance argue that Section 7103(b)(1) of the Federal Service Labor-Management Relations Statute gives the President authority to exclude the listed agencies from the obligations under that statute. Section 7103(b)(1) grants the President the power to exclude an agency or subdivision from the labor relations statute if the President determines that: (1) the entity has “as a primary function” intelligence, counterintelligence, investigative, or national security work; and (2) unionization of employees under the statute is not “consistent with national security requirements and considerations.”

The DC Circuit has construed Section 7103(b)(1) to delegate to the President the ability to exclude an agency from the statute’s provisions whenever he “determines” the exclusion criteria are met. The DC Circuit did not require the President to include written findings in making that determination, and held the President’s action is entitled to a presumption of regularity.

NTEU and AFGE claim the history of federal employee unionization demonstrates the executive order’s exclusions are not legitimate, but retaliations for opposing administration policy. However, this claim could boomerang. The unions’ unprecedented “resistance” against the Trump administration could satisfy the second prong of Section 7103(b)(1)—that unionization under these circumstances is inconsistent with national security considerations.

Under the federal labor relations statute, once a union is certified as an exclusive representative of federal employees, it gains significant powers to bind and obligate the federal government, including: (1) requiring agencies to provide free dues collection; (2) the right to be present during any grievance or personnel proceedings; and (3) the power to force agencies to bargain over terms and conditions of employment and enter into collective bargaining agreements that can override new executive orders, regulations, and even laws. If a union represents a certain percentage of an agency’s employees, it can be granted national consultation rights. When such rights are granted, an agency must: (1) inform the union of any substantive change in conditions of employment proposed by the agency, (2) allow time for the union to present its views, which the agency must consider, and (3) provide the union a written statement of the reasons for taking any final actions.

The unions’ use of some or all of these privileges to obstruct the Trump administration’s agenda could justify a finding that union organizing in some agencies is inconsistent with national security considerations. NTEU boasts that it has “fought back against President Trump’s agenda,” and AFGE contends that it is “pushing back against harmful policies” from the administration. In other words, the unions have openly used their authority under the labor relations statute to resist the Trump administration’s agenda and insulate executive branch employees from legitimate political objectives implemented by the President and Congress. Some examples include:

  • During the prior Trump administration, AFGE used its collective bargaining privileges to prevent the President from implementing policy changes at the VA—even after the government passed and implemented a new statute to ensure accountability at the VA.
  • In the waning days of the Biden administration, federal unions rushed to finalize long-term collective bargaining agreements to undermine President Trump’s ability to shape the federal workforce and to implement reforms he advocated during the campaign. For example, AFGE negotiated a collective bargaining agreement with the Biden EPA that purports to remove or restrict the ability of subsequent political appointees to determine policy for the agency. According to AFGE, “This contract . . . provides protections for any employee asserting their scientific rights. An independent arbiter, not a political appointee, will determine whether science is being undermined. It puts employees in the best possible position to continue with the mission of the Agency no matter who sits in the Oval Office.” This statement demonstrates federal unions’ failure to understand that the mission of federal agencies must be defined by the democratically accountable President.
  • Federal unions extended their exclusive representation to novel groups of employees. In 2023, the Biden NIH recognized a union of NIH Fellows—a group that includes non-citizen visiting fellows. The Biden NIH and the union themselves conceded this was a “novel bargaining unit.” On December 20, 2024, the union and the Biden NIH entered into a collective bargaining agreement that effectively prevents the new administration from implementing any changes to terms and conditions of employment. Moreover, the fact that non-citizens are specifically included as members of a bargaining unit that has the power to bind and obligate the federal government may implicate national security considerations.
  • In late 2024, NTEU and the Biden DOJ agreed to allow NTEU to seek an election to represent two large divisions of DOJ attorneys, notwithstanding that the Federal Labor Relations Authority had previously ruled individual DOJ divisions are inappropriate bargaining units. This bargaining unit is only in doubt because a single DOJ attorney stepped forward to challenge NTEU and DOJ’s agreement (full disclosure: I represent this employee).

NTEU, AFGE, and other federal employee unions have used and will continue to use their powers and privileges to oppose and obstruct the President’s agenda. The question for the courts is whether this fact cuts for or against the legality of the executive order under Section 7103(b)(1).