Introduction: Battle Lines Being Formed
The Trump administration is seeking to transform the federal workplace, but is facing resistance from union lawsuits. Since the beginning of President Donald Trump’s second term, unions have sued on matters of widespread public concern, including civil service rules, resignation procedures, mass layoffs, probationary employee firings, agency closings, and employee privacy rights. The Administration has pushed back, not only in court, but through unilateral administrative action. Without any authorization by Congress, the Trump administration has announced an end to labor law protections and collective bargaining agreements (CBAs) for more than a million federal employees. In this essay, I will describe the litigation to preserve labor law rights and CBAs for federal employees. Very likely, the Supreme Court will consider one or more of the cases, perhaps within weeks. While the cases present a number of issues—among them, jurisdictional disputes, and questions of presidential discretion and statutory interpretation—the focus of this essay is on union claims under the First Amendment. I believe compelling evidence demonstrates a violation of First Amendment rights and offers strong protection for union representation for federal employees.
The prospect of ending union representation might be the Administration’s ultimate goal. This would be consistent with Project 2025’s Mandate for Leadership, a compilation of proposed government changes assembled by the Heritage Foundation. In the section titled “Managing Personnel in a Union Environment,” the report urges
Congress to “consider whether public sector unions are appropriate in the first place,” asserting there was a consensus years ago that they are “not compatible with constitutional government.” Is termination of federal sector CBAs an Administration compromise short of a total ban, or is it a precursor to the next steps to be taken? Either way, the First Amendment can be key in stopping the attack on federal employees and their unions.
Trump Administration Directives
In early March, the first shoe dropped. Department of Homeland Security (DHS) Secretary Kristi Noem, in the “Noem Determination,” announced the termination of union representation and the CBA for employees of the Transportation Security Administration (TSA). The action covers approximately 47,000 workers. Soon after, the American Federation of Government Employees (AFGE), the union representative, sued.
The DHS action was based on its administrative discretion under the 2001 statute creating the TSA, and was consistent, in the Secretary’s view, with a series of Trump administration policy and personnel orders. According to Secretary Noem, the decision was tied to “critical national security responsibilities” and “governmental efficiency and productivity.” Previous administrative decisions permitting union representation beginning in 2011 were rescinded, and the union’s election was deemed “no longer applicable or binding.”
For Secretary Noem, past approvals of union representation were “misplaced directives [that] have solely benefitted the American Federation of Government Employees,” costing transportation security officers (TSOs) nearly $15 million annually, and “failed to serve TSA’s critical mission to protect the transportation system and keep Americans safe.” The press release for the Noem Determination stated, “TSOs are losing their hard-earned dollars to a union that did not represent or protect their interests.”
The Trump administration wasn’t done, however. The DHS action was modest compared to what came next. On March 27, President Trump issued Executive Order (EO) 14251, a sweeping proclamation that ended much of federal labor law coverage and CBAs under the Federal Service Labor Management Relations Statute (FSLMRS), enacted in 1978. The EO applies to more than two dozen agencies and departments throughout the U.S. government. The AFGE, the largest federal sector union, has reported the prospect of major staff layoffs due to lost dues income.
Implementing the EO was detailed in a memo from the Office of Personnel Management (OPM), also issued on March 27. Among other actions, the OPM instructed agencies to discontinue grievance and arbitration proceedings and to disregard contractual provisions governing reductions-in-force. A third document, a White House “Fact Sheet,” was issued on March 27 as well. The Fact Sheet described the Administration’s goal of ousting “hostile unions” opposed to the President’s policies. More on the Fact Sheet below in a discussion of First Amendment claims by affected unions.
A set of “Frequently Asked Questions” (FAQs), assembled by a council of federal human resources officials and published on April 8, offered additional guidance on implementing the EO, but questions have arisen about its application. On the one hand, the FAQs advised that agencies “not terminate any CBAs until the conclusion of litigation….” Yet, the FAQs also instructed agencies in bargaining to “suspend such negotiations….” Additionally, the FAQs do not address the status of grievance and arbitration proceedings that OPM had told agencies to discontinue, and there is no mention of paying union dues which are automatically deducted under CBAs.
Soon after the EO, unions filed suit. The AFGE was the lead plaintiff in one case. Suits were filed as well by the National Treasury Employees Union (NTEU), the American Foreign Service Association (AFSA), and the Federal Education Association (FEA). For its part, the Trump administration filed two actions for declaratory relief to rescind CBAs, one in Texas against the AFGE and the other in Kentucky against NTEU.
The Trump administration’s legal basis for the EO is that a primary function of the excluded agencies involves national security under the governing statute, 5 U.S.C. Section 7103(b)(1). That section states:
The President may issue an order excluding any agency or subdivision thereof from coverage under this chapter if the President determines that—
(A) the agency or subdivision has as a primary function intelligence, counterintelligence, investigative, or national security work, and
(B) the provisions of this chapter cannot be applied to that agency or subdivision in a manner consistent with national security requirements and considerations.
Unions opposing the EO contend that the national security exception is narrow, and that approving the EO would undermine the labor relations system established by Congress nearly 50 years ago. In the litigation record regarding the EO, there is no reference by the Trump administration to any comparable presidential order drastically reducing the scope of federal employment designated by Congress for possible unionization.
The Administration’s actions in the CBA cases deal with the large majority of federal employees who are subject to the FSLMRS and other labor laws, whether in unions or not. There are nearly 2.4 million federal employees, not including the postal service and active duty military. Over one million federal employees are represented by unions.
In understanding the federal workforce, private sector contractors for agencies cannot be overlooked. Contractor employees work a variety of jobs, and exceed the number of federal employees, with some unionized and some not. In light of the Administration’s actions applying to those working in any agency with a national security function, even if not a dominant function, the President presumably could advance a similar rationale for employees of private contractors in federal service, particularly if the agency is one for which the EO applies.
Litigation
As of this writing, three decisions have issued in cases brought by unions regarding the Trump administration’s labor law and CBA terminations.
In the first decisions, Judge Paul Friedman in the U.S. District Court for the District of Columbia granted injunctive relief in two cases; one in the NTEU filing on April 28, and the other in AFSA v. Trump on May 14. A third decision on June 2 by Judge Marsha Pechman in the U.S. District Court for the Western District of Washington enjoined the DHS action for TSA employees.
A decision also issued in one of the declaratory relief actions filed by the Trump administration. On May 20, Department of the Treasury v. NTEU in Kentucky was dismissed for lack of standing, without reaching the merits of the EO.
Hearings this month are set in other cases.
On a threshold issue of proper jurisdiction, Judges Friedman and Pechman rejected the Administration’s contention that the disputes are subject to specialized determination by the Federal Labor Relations Authority (FLRA). Applying recent Supreme Court guidance, the judges ruled that the union challenges involved constitutional and statutory claims that were not the type of labor relations and personnel disputes customarily resolved by administrative agencies. In any event, for the judges, the Administration’s actions ending statutory coverage and CBAs rendered the agencies irrelevant.
Turning to whether relief was warranted, Judge Friedman in the NTEU case followed the analytical steps from a previous circuit court decision on the national security exclusion, AFGE v. Reagan. Judge Friedman concluded that the EO exceeded the statutory authority for a national security exemption. In doing so, Judge Friedman declined to extend a presumption of regularity to the EO, in part because the sweep of the EO was at odds with Congress’s goals and findings, and in part because of the retaliatory, pretextual nature of the President’s action.
Judge Friedman also concluded that the EO was ultra vires by relying on an overly expansive reading of the statutory terms “primary function” and “national security,” and because it sought to achieve personnel-practice policy goals unrelated to the statute’s labor relations purpose. According to Judge Friedman, the union made a sufficient showing of irreparable injury for injunctive relief given the EO’s impact on union representation and the actual loss of dues income. The NTEU, the second largest federal sector union, offered evidence that it is losing about one million dollars every two weeks.
Judge Friedman’s order in the NTEU case was stayed on May 16 in a two-to-one ruling by a D.C. Circuit panel. The majority concluded that the harm alleged by the union was speculative or, for dues, recoverable later. The appellate panel also recognized the President’s national security expertise as a matter of public interest. NTEU has petitioned the D.C. Circuit for en banc review, arguing that irreparable injury has been demonstrated by the actual loss of bargaining status and union dues, contrary to the panel’s ruling.
The second decision by Judge Friedman in AFSA v. Trump on May 14 found that, although the dispute involves a statute other than the FSLMRS, the language in the two laws was essentially the same for the national security exemption. Given the overlap, Judge Friedman’s reasoning in AFSA tracked the NTEU decision.
The third decision, by Judge Pechman in AFGE v. Noem, considered a different administrative context for DHS, but held that injunctive relief was appropriate. Judge Pechman rejected the DHS argument that its administrative discretion provided authorization for the agency. The judge ruled that the Noem Determination appeared to violate the Administrative Procedures Act by failing to give notice to the AFGE or offer more than a cursory justification. Similar reasoning by Judge Pechman applied to whether DHS’s action constituted a Fifth Amendment due process violation. At the core of Judge Pechman’s decision, however, was her conclusion that the DHS determination was likely a retaliatory, pretextual attack on the AFGE’s First Amendment rights of speech and association. I will have more to say on this aspect of the case below.
Federal Sector Bargaining
Unions largely were absent from most public sector workplaces—federal, state, and local—until the 1960s and 1970s. In contrast, private sector unionization was authorized by the Railway Labor Act (RLA) in 1926 and by the National Labor Relations Act (NLRA) in 1935. For the Congress, as evident in the NLRA’s statement of purpose, the law empowered workers to organize collectively to bargain with employers, and, by so doing, promoted peaceful commerce and limited the use of disruptive economic weapons such as strikes.
The FSLMRS was enacted in 1978 as part of civil service reform legislation. The statute built upon an executive order issued in 1962 by President Kennedy. The statute also drew upon the NLRA by establishing the FLRA with a three-person board to rule on unfair labor practice allegations. In key respects, however, the FSLMRS departed from the private sector model. For example, federal law generally prohibits bargaining over wages and benefits subject to the “general schedule,” employees may refrain from union membership and dues, strikes are treated as unfair labor practices, and negotiated grievance procedures are required.
For negotiated grievance procedures, the law authorized arbitration appeals only to the FLRA, and permitted court review only for claims of an unfair labor practice. A brief review of FLRA decisions on arbitration appeals demonstrates the everyday nature of the cases, which invariably involve discipline and contract interpretation disputes having nothing to do with national security. Contrary to Administration assertions, under the FSLMRS management policy decisions are removed from bargaining, and therefore from the scope of arbitration decisions.
Upon passage of the FSLMRS, several agencies were expressly excluded from coverage. In the years since, a modest number of additional orders have been based on the national security exception.
The DHS was formed after the terror attack of September 2001, but was excluded from the LSLMRS. In 2011, however, union representation was permitted, in part to improve poor employee morale and performance. Four CBAs followed. The DHS action in early March and President Trump’s EO on March 27 were dramatic changes from past experience under both Democratic and Republican administrations, including President Trump’s first term.
The Supreme Court has considered the FSLMRS sparingly. In an early case, Bureau of Alcohol, Tobacco & Firearms v. FLRA, the Court dealt with government travel payments for union personnel on official business. The Court emphasized the importance of public sector labor rights, acknowledging, in the words of the statute, that “labor organizations and collective bargaining in the civil service are in the public interest,” as they promote “an effective and efficient Government.” The Court affirmed the statutory authorization for employees to “form, join or assist any labor organization, or to refrain from such activity,” and approved agency bargaining with unions, except for management prerogatives. If the Administration’s labor law actions are upheld, one can imagine the increasing caseloads for courts once federal sector labor law—and recourse to the FLRA or to arbitration—is blocked.
The National Security Exception
On the issue of national security, there are two relevant provisions in the FSLMRS. One is in the section on definitions, 5 U.S.C. § 7103(b)(1), quoted above. The second, 5 U.S.C. § 7112(b)(6), refers to bargaining units, providing that union representation is not appropriate for national security positions.
An early FLRA decision, Oak Ridge, determined that the statutory exclusion from union representation should apply narrowly to work that “directly affects national security,” citing as key concerns “espionage, sabotage, subversion, foreign aggression, and any other illegal acts which adversely affect the national defense.” In Oak Ridge, the FLRA relied on Cole v. Young, a 1956 decision of the Supreme Court rejecting summary discipline based on a national security claim. The Court concluded that the national security rationale was intended to apply only to “…those activities of the Government that are directly concerned with the protection of the Nation from internal subversion or foreign aggression….” For the Court, an “indefinite and virtually unlimited” understanding of national security would create an exception to general personnel laws that “could be utilized effectively to supersede those laws.” The same reasoning can apply to the EO.
Oak Ridge remains controlling precedent under the FSLMRS. In Judge Friedman’s decisions, he relied on it and on Cole v. Young. Indeed, the EO cites Oak Ridge as defining what constitutes “national security.” A national security exception is not provided for DHS by statute, but, given the TSA’s work, it is fair to assume that at least some positions could be excluded.
Pressing a First Amendment Claim
In litigation challenging the Trump administration’s labor law and CBA actions, unions have argued that they constitute a retaliatory attack under the First Amendment. Judge Pechman agreed in AFGE v. Noem. While Judge Friedman did not rule on the First Amendment question in the NTEU and AFSA cases, he applied constitutional principles to strengthen rejection of the President’s national security rationale. As other cases involving the labor law rights of federal employees move forward, unions are pressing the First Amendment issue for likely consideration by the Supreme Court.
In assessing the strength of a constitutional claim, the First Amendment provides fundamental protections for unions when raising concerns for those they represent, with recent First Amendment case law potentially strengthening the union argument. Supreme Court decisions in the 1930s and 1940s provided bedrock protections for union activity, initially in the private sector. Examples include street gatherings, peaceful picketing, displaying signs, and union speech. Later cases trimmed these core rights, but basic protections have been confirmed by narrowly construing the NLRA.
Public employees also are protected from retaliation for exercising First Amendment rights. Protection extends to filing union grievances on matters of public concern, as in Borough of Duryea v. Guarnieri, and to testifying in court about corrupt government practices, as in Lane v. Franks. Protection is available even if public sector unions cannot rely on the First Amendment to compel an employer to bargain, or to listen and respond to grievances, and even if some actions, such as strikes by federal employees, are barred by statute and not protected.
In presenting a case, a public sector union has standing to advance a First Amendment claim not only for its own injury, but also for employees it represents. Organizational standing has roots in the civil rights movement, and has been confirmed by the Supreme Court for unions dealing with lost benefits and layoffs affecting employees. In union cases, drawing upon litigation by other groups, a union not only can sue for its own injuries, but it can litigate to protect employee rights germane to the union’s purposes, even if individual employees are not named in a union lawsuit.
Briefly stated, the elements of a First Amendment retaliation claim by a public sector union are: (1) protected activity on a matter of public concern; (2) adverse action with injury to the union and to employees it represents; and, (3) causation linking the action to animus against the union. For a defendant to prevail against a union claim, it must show a legitimate, non-discriminatory justification without regard to the protected conduct.
How will a union prove the elements of a retaliation claim, particularly showing anti-union animus as a driving force? Forms of proof, all present here, include written and verbal statements, the timing of the action, deviation from established practice, the absence of a reasoned explanation, and differential treatment of other similarly situated unions.
The premise of this essay is that, although existing law provides for union representation and bargaining for public employees as a statutory right, and is not Constitution-based, retaliation cannot strip away a statutory right. This is consistent with a legal distinction between discrimination or other harm based on a plaintiff’s status, and retaliation based on an intent to punish conduct.
In Judge Friedman’s decisions in the NTEU and AFSA cases, his statutory analysis carefully applied circuit court precedent, and expressly declined to rule on the unions’ First Amendment claims. As an experienced and respected federal judge, it is understandable that he adhered to a restrained judicial approach of “constitutional avoidance.”
This statutory interpretation, however, will be resisted by the Trump administration with a recurring argument; that is, the President has broad discretion under the FSLMRS (or under the law authorizing DHS), to determine an agency has national security functions. A decision relying on a statutory analysis, no matter how well-crafted and faithful to judicial process, can face a contrary interpretation in higher courts, as already shown by the D.C. Circuit panel’s reference to the President’s national security rationale. Who can say what is likely to happen before the Supreme Court given a leaning that favors the President’s unitary executive authority regardless of congressional intent? By relying on statutory analyses, there is a risk that recent decisions will be reversed without considering, on the merits, convincing evidence of retaliation for the exercise of First Amendment rights.
Regarding proof of retaliation, core elements have been identified already. In this respect, the White House “Fact Sheet” is at the heart of a First Amendment claim. According to the White House, the FSLMRS “enables hostile Federal unions to obstruct agency management,” asserting this is “dangerous in agencies with national security responsibilities,” but without offering evidence of how this is so. The Fact Sheet states that unions rely on CBA terms to block organizational changes and to prevent removal of poor performing employees, but again without showing a link to national security. For the White House, “certain Federal unions have declared war” on the President’s agenda, by, among other actions, “widely filing grievances.” In contrast, as the Fact Sheet comments, the President “supports constructive partnerships with unions who work with him.” For Judge Friedman, the Fact Sheet showed that the EO, by excluding more than a dozen agencies and large majority of federal employees, is contrary to Congress’s determination of the public interest.
As to unions favored by the President, Judge Friedman noted that the EO exempts police, security guards, and firefighter employee organizations, but not prison guards represented by a union that did not back President Trump. In the AFSA case, the judge observed that the President excluded the Border Patrol from coverage under the EO, and he reasoned this was evidence of wrongful intent given the agency’s security role in guarding the U.S. border and its backing of Trump in the 2024 election. In addition, Judge Friedman found evidence of retaliation in a post-EO decision favoring a union at the Veterans Administration that had filed “no or few” grievances. The unequal treatment of federal sector unions strengthens a claim of retaliation.
On the First Amendment issue in AFGE v. Noem, Judge Pechman cited the multiple lawsuits brought by the AFGE against Trump administration orders as protected acts that appear to have triggered Secretary Noem’s unsupported attack on the AFGE as the “sole” beneficiary of the CBA. Judge Pechman also referred to the Noem Determination’s failure to offer a sufficient explanation to depart from longstanding DHS findings of collective bargaining benefits, to anti-union comments in the DHS press release, and to the Trump administration’s subsequent comments about the AFGE and hostile unions, generally.
Although not mentioned by either Judge Friedman or Judge Pechman, the different treatment of private contractor employees and their unions also is evidence of intent to selectively harm federal sector unions for First Amendment activity. How is it that those represented by federal sector unions can be denied representation, but private contractor employees represented by unions are not, even if engaged in similar work for an agency listed in the EO?
Summing up, union grievances under negotiated procedures in CBAs, whether authorized by the FSLMRS or by administrative decision, are protected against retaliation by the First Amendment, as are lawsuits objecting to Administration actions. With several cases challenging the labor law and CBA directives of the Trump administration, our attention will be drawn to courts deciding if the President has gone too far. The final say will be the Supreme Court’s. Will the Court subordinate the First Amendment right of federal sector unions to represent employees on matters of public concern, and instead approve anti-union retaliation by the President?
