Politics
Agencies’ explanations for implementing labor-management EO runs a wide gamut
The impact of President Donald Trump’s March executive order stripping collective bargaining rights from employees at 23 agencies for national security reasons is slow to materialize.
New court documents filed by agencies at the end of June shows of the seven provisions outlined in the Exclusion from Federal Labor-Management Relations Programs EO, only one — to stop collecting union dues — has agencies significantly implemented.
Out of the 23 agencies now excluded from CBAs, 19 have stopped collecting union dues. Among the remaining six provisions, only eliminating official time and reassigning employees who participate in official time saw any true pick up.
Source: District Court document from July 1.
All of these efforts now are on further hold with a California District judge issuing a preliminary injunction on July 1, stopping agencies from further implementing the EO. Judge James Donato says AFGE and other defendants showed “good cause” that the further implementation of the EO would harm federal employees.
The judge put the preliminary injunction in place without any hint to an end date.
As part of the filings before the judge ruled, the 23 agencies — or really more precisely the administration — tried to persuade the judge not to grant the injunction. The filings are among the first time agencies have discussed publicly why the executive order is necessary.
After going through all 23 agency filings, the reasons the agencies gave for why an injunction would, as many said, cause “irreparable harm” ran the gamut of boiler plate to head scratching to “say what?” to fair and more than reasonable.
The unions filing on July 7 in response to the government’s request to the judge not to grant the injunction says “to show irreparable harm, the government must point to specific evidence that a temporary return to the pre-order status quo will have a ‘significant impact’ on agencies’ ability to safeguard our national security.”
The plaintiffs argue the government’s case fails to show harm.
“Defendants do not come close to carrying that burden,” the filing states. “After taking the position at the preliminary injunction stage that plaintiffs were not suffering harm because most agencies were not implementing the executive order, defendants do an about face and argue that the injunction should be stayed because defendants are suffering irreparable harm given the extensive steps taken to implement the executive order.”
The union’s filings in May for why the judge should grant the injunction also teeter on the same spectrum of rationale. (Side note: Maybe this is why I didn’t become a lawyer, I’m not good at arguing when there is no actual good argument to be made. Though, my friends would disagree about my theories on sports and on bagels, but that is for a different time altogether.)
Let’s start with the claims made by agencies that seemed to cause some skepticism.
Here are few examples:
Environmental Protection Agency
Deputy Assistant Administrator for Mission Support Michael Molina wrote, “The AFGE collective bargaining agreement includes numerous terms that materially restrict the power of EPA to govern and set policies for its own workforce that impact the national security mission of the agency. The AFGE CBA article 17 generally require performance improvement plans (PIPs) to last at least 90 days and ‘under no circumstances’ less than 60 days, before EPA can propose to remove an underperforming employees. This is between double and triple the 30 days the President has determined is generally appropriate for these evaluations.”
“EPA generally cannot implement the President’s governmentwide rules and regulations that conflict with the AFGE CBA (absent a compelling need or without renegotiation and agreement with AFGE). The implementation of the President’s memorandum directing remote employees back to agency worksites was delayed by the CBA’s requirement of multiple pay periods’ notice before terminating employees’ telework and remote agreements. The executive order removed these obstacles.”
Let’s be honest, 30 days for a PIP is just arbitrary as 60 or 90 days. Trying to make the case that giving an employee extra time to shape up or ship out doesn’t seem egregious. It’s clear this approach has been in place for several years and if the agency thought it was problematic, EPA signed a new agreement with AFGE last July and could’ve easily addressed it then.
Department of Health and Human Services
Christina Balance, executive director of the National Labor and Employee Relations Office, wrote, “The operational and strategic capacities of the relevant HHS agencies will be seriously impacted if the preliminary injunction is not stayed. Although all effected components will be harmed, the Centers for Disease Control and Prevention (CDC) will be acutely harmed. The CDC’s contributions to national security, including its efforts in bioterrorism preparedness, pandemic response and infectious disease surveillance are indispensable. The CDC’s national security program often operate under strict timelines to mitigate risks and respond to emerging threats. As a frontline agency in the defense against public health threats, the CDC must be empowered to rapidly adjust its policies and operations in response to evolving intelligence and threat landscapes. The roadblocks created by this injunction may delay program execution, compromising the agency’s ability to safeguard public health and national security.”
“Similarly, the injunction could harm the FDA’s rapid response capabilities, which would have severe repercussions on public health, national economic stability and security. The agency’s swift evaluation and approval of vaccines and treatments during emergencies like the COVID-19 pandemic, are crucial for quickly restoring and sustaining national productivity. Additionally, the FDA plays a critical role ensuring the safety of the food supply and developing countermeasures against chemical, biological, radiological and nuclear threats. Any delay in effectiveness in safeguarding public health and national security, potentially leading to prolonged economic disruptions and increased vulnerability to threats.”
The idea that the CDC and the FDA couldn’t react to national emergencies under the current CBA seems to conveniently forget that both actually did a pretty darn good job during the COVID-19 pandemic. The federal employees and unions working at the CDC and the FDA responded to the pandemic in what easily could be called heroic fashion by getting vaccines approved and developing information sharing systems for state, local and international governments.
One former CDC executive said they never considered themselves as part of the national security space. The person said the agency’s purview was extremely limited and CDC had to negotiate access to classified data and information with the national security community. It also had borrow data and information from other agencies under a ”handshake agreement” because they didn’t have enough of a need or part of that space.
“We almost prided ourselves as not being a part of the national security apparatus,” the former executive said.
Here are few of the reasons from agencies I’ll put in the “say what?” category:
Office of Personnel Management
Carmen Garcia-Whiteside, chief human capital officer, wrote, “The confusion and uncertainty caused by this change will harm both OPM and the employees previously represented by the union. OPM had already stopped the collection of due and removed the union as exclusive representatives of these employees. OPM will experience an administration burden in returning to the status quo, including from the re-initiation of the collection of dues.”
“It is also unclear if OPM will need to retrospectively engage in bargaining or notification that would have happened since March 27, 2025. For example, OPM has conducted reductions-in-force (RIF) in OPM organizations previously represented by the union. Some of the employees impacted by the RIF may have been re-employed through Career Transition Assistance Plan (CTAP) postings, the validity of which may be called into question.”
Basically OPM is saying turning back on the ability to pay dues automatically from pay checks is just too hard, even though the federal payroll providers have been doing it for decades?
And, OPM is saying that because they made a decision to RIF employees without following the rules that the government agreed to and that they wrote, OPM would be harmed by having to go back and actually follow the rules?
Immigration and Customs Enforcement
Meir Braunstein, section chief of labor relations, wrote, “The CBA also contains provision that impose numerous, sometimes burdensome rules regarding temporary work assignments, alternative work schedules and more, which must be followed by the agency notwithstanding any unanticipated needs that may run contrary to those provisions. For example, the enhanced pace of operations in recent months has required the agency to evaluate ways to provide legal support to agents and officers in the field on a ‘24/7’ basis, but the contract has provisions that set core hours and create other complications that significantly limit the way in which ICE can go about addressing this need.”
Let’s dissect this statement a bit. ICE is a law enforcement agency. They respond to all sorts of emergencies and urgent situations. My guess is that the CBA includes the ability of managers to hand out temporary work assignments as they see fit for the mission. For example, ICE says in its fiscal 2023 annual report, its Enforcement and Removal Operations (ERO) “deployed more than 1,300 employees to support [migration challenges at the Southwest border], accounting for approximately 17% of its workforce. As a result, ERO has had to carefully re-balance resources that were previously devoted to its interior immigration enforcement mission.” Some ERO employees are represented by the American Federation of Government Employees (AFGE). We also know ICE, as much as possible, shifted to telework during the pandemic without months of negotiations with their unions.
Here are few examples of agencies who made cases to the judge that seem fair and reasonable:
General Services Administration
Arron Helm, chief human capital officer, wrote, “GSA has vacated or repurposed office space formerly dedicated to union activities as part of its ongoing real estate optimization initiative. Reacquiring or reconstructing these facilities for the unions would require the expenditure of public funds and resources.”
It’s clear that agencies may have gotten rid of too much office space over the last five years. We’ve reported and heard from federal employees who are working in conference rooms because there aren’t enough desks and chairs due to consolidations.
Energy Department
Reesha Trznadel, acting chief human capital officer, wrote, “DoE has seven different collective bargaining agreements with the American Federation of Government Employees (AFGE), each with its own requirements management has to comply with.”
“DoE will suffer the following harms if forced to continue to comply with the preliminary injunction and return its labor management operations to the status quo that existed prior to the March 27, 2005 issuance of the EO: Due to the organizational structure of certain offices, such as Fossil Energy and Carbon Management or Energy Efficiency and Renewable Energy, management of one organization may have to comply with the requirements of multiple CBAs to implement a single change within an organization. Each union may require notice, bargaining or other time-consuming processes prior to management being able to implement any changes. In addition, the result of the negotiations may impose conflicting requirements on management. This impedes management’s ability to timely implement mission critical changes and efficiently manage its workforce. In general, the multiple CBAs result in similarly situated employees in the same office, and within DoE as a whole, being treated differently by virtue of the CBA that governs their unit.”
“As a general matter, CBA’s interfere with DoE’s ability to execute and implement the President’s initiatives related to national security. For example, DoE cannot implement governmentwide rules and regulations from the President that conflict with the CBAs, without renegotiation and agreement with the unions. The executive order removed these obstacles, but the preliminary injunction reimposed these restrictions.”
Seven different unions with seven different agreements? While there may have been good reason for different agreements, at some point, the union and agency have to realize the waste of time and energy in negotiating, upholding and managing these agreements. It’s probably a more honest assessment by DOE that restarting the union agreements is a bit wasteful and time consuming. Of course, the answer isn’t to end them, but to renegotiate them into one, or at least fewer than seven different ones.
Now to be fair, the union’s responses to this EO and the “harm” they could cause also leave a lot to be desired.
AFGE
National President Everett Kelley in the union’s May 7 motion to the court wrote, “AFGE has been harmed by the executive order in several ways. First, absent any relief from the order, many of AFGE’s local affiliates and national councils will likely cease to exist. Hundreds of bargaining units will be eliminated completely as a result of the sweeping loss of bargaining rights across the government.”
“As a direct result of the executive order, AFGE is the bargaining representative for about 660,000 fewer federal employees than prior to March 27, 2025. [A] union’s bargaining power derives from the number of employees it represents at an agency. Accordingly, the executive order has severely diminished the ability of AFGE and its affiliates to represent workers at the affected, including those who work for subdivisions whose Chapter 71 [the right to join, form or assist any labor organization] rights have not been stripped away.”
“As a public sector union, AFGE is financed almost exclusively by voluntary dues. A majority of AFGE’s dues-paying members work at the excluded agencies. Revenue from voluntary dues made up more than 90% of AFGE’s operating budget in 2024, and by ordering the cessation of the primary method through which AFGE collects dues from employees at the affected agencies, has created a sudden and catastrophic drop in AFGE’s revenues.”
If the main harm the unions are pointing out relates mainly to their own budget problems instead of the rights that they help negotiate for employees, such as working conditions or quick turnarounds for a scheduling perspective or other protections. Their argument seems short sighted and seems to miss the broader point of what the union’s job is.
National Federation of Federal Employees
Randy Erwin, national president, wrote, “NFFE has been harmed by the Executive Order in several ways. First, absent relief from the order, many of NFFE’s local affiliates will likely cease to exist as it did with the benefit of collective bargaining rights. Dozens of bargaining units will either be effectively eliminated without agency recognition, or severely diminished in size as a result of the sweeping loss of bargaining rights and recognition across the federal government.”
“Agencies are generally complying with OPM’s instructions and refusing to process grievances filed by NFEE, including holding arbitration hearings, refusing to provide advance notice of changes or negotiating with NFFE on negotiable changes, rescinding official time and union office space, and refusing to withhold and allot voluntary dues from employee paychecks to NFFE. For example, Passport Services within the Department of State has refused to bargain over work schedule changes. The GSA has refused to provide information or bargain on two negotiable subjects: return to work and the reduction in force, which is in process. The Department of the Air Force has notified us that all negotiations, discussions or actions related to collective bargaining agreements, grievances or responses to requests for information concerning any labor related issues are held in abeyance. Thus, NFEE is unable to perform its representational responsibilities and basic role of a union at excluded agencies, to the detriment of the federal employees it represents.”
NFFE’s claims are exactly what the White House intended the EO to do — remove the CBA as a barrier. So telling the court a harm would be to limit or eliminate their power to negotiate or bargain or to support the filing of grievances seems to be less of a compelling argument.
The lack of specifics for both agencies and unions means it’s unclear how the courts will eventually decide case. And it’s no head scratcher to assume the case will make its way through the court system, likely all the way up to the Supreme Court, in the coming months.
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