On February 21, 2020, a notice was published in the Federal Register entitled Delegation of Certain Authority Under the Federal Service Labor-Management Relations Statute. President Biden received considerable support from federal employee unions during the presidential election campaign and that support is now paying off. Here is the latest installment.
On February 24, 2021, President Biden issued an Executive Order revoking a number of earlier Executive Orders issued by President Trump. One of the Orders that has now been revoked was the Delegation of Certain Authority Under the Federal Service Labor-Management Relations Statute.
What Was in the Trump Executive Order?
Here is why this revocation is important to federal employee unions.
The Federal Register notice from February 2020 stated:
The Secretary of Defense (Secretary) is delegated authority under 5 U.S.C. 7103(b)(1) and 7103(b)(2) to issue orders excluding Department of Defense agencies or subdivisions thereof from Federal Service Labor-Management Relations Statute coverage. The Secretary is authorized to further delegate this authority to any official of the Department of Defense appointed by the President with the advice and consent of the Senate.https://www.federalregister.gov/documents/2020/02/21/2020-03578/delegation-of-certain-authority-under-the-federal-service-labor-management-relations-statute
The notice is based on authority given to the president in the federal labor relations statute. The relevant part of this law reads:
(b)(1) 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.https://www.govinfo.gov/content/pkg/USCODE-2018-title5/html/USCODE-2018-title5-partIII-subpartF-chap71-subchapI-sec7103.htm
Rationale for the Trump Executive Order
In effect, if the Secretary of Defense decided that most or all of Department of Defense employees are engaged in national security work, about 400,000 federal employees would potentially no longer be represented by a union. This would have major financial implications on federal employee unions.
The rationale for the move by the Trump administration was based on national security concerns. According to the Federal Register notice:
When new missions emerge or existing ones evolve, the Department of Defense requires maximum flexibility to respond to threats to carry out its mission of protecting the American people. This flexibility requires that military and civilian leadership manage their organizations to cultivate a lethal, agile force adaptive to new technologies and posture changes. Where collective bargaining is incompatible with these organizations’ missions, the Department of Defense should not be forced to sacrifice its national security mission and, instead, seek relief through third parties and administrative fora.
No rationale was given by President Biden for his latest action in revoking the Trump administration Executive Orders. Of course, no rationale has to be given for the action. It does not make any difference if the purpose is to create a more efficient government, reward political supporters, or just to implement his political philosophy.
Federal employee unions predictably rejoiced at the latest presidential action supporting unions. AFGE promptly issued a press release stating:
The previous administration’s attempt to strip DoD civilians of their union rights under the guise of national security was a blatant union-busting tactic that was repudiated by lawmakers from both political parties and never acted upon by the Secretary of Defense. President Biden’s decision to revoke this memo ensures that DoD workers will retain the right to join a union and bargain collectively for better working conditions, and it is yet another positive step by his administration to support the working people who serve our country with honor and distinction.