A new Executive Order has been issued that will have a major impact on unions and employees in the federal government. The Executive Order is entitled Exclusions from Federal Labor-Management Relations Programs.
The new Executive Order signed by President Trump modifies Executive Order 12171 of November 19, 1979 signed by President Jimmy Carter. That Executive Order was entitled Exclusions from the Federal Labor-Management Relations Program. The new Order significantly expands the Carter Order.
The Trump Order significantly expands agencies where employees would be excluded from union representation. It targets major agencies.
These agencies will be excluded from being covered by the federal labor relations statute because they “are hereby determined to have as a primary function intelligence, counterintelligence, investigative, or national security work. It is also hereby determined that Chapter 71 of title 5, United States Code, cannot be applied to these agencies and agency subdivisions in a manner consistent with national security requirements and considerations.”
- Department of State
- Department of Defense, except for any subdivisions excluded pursuant to section 4 of the Executive Order of March 27, 2025, entitled ‘Exclusions from Federal Labor-Management Relations Programs’
- Department of the Treasury, except the Bureau of Engraving and Printing
- Department of Veterans Affairs
- Department of Justice
- International Trade Administration, Department of Commerce
- Environmental Protection Agency
- United States Agency for International Development
- Nuclear Regulatory Commission
- National Science Foundation
- United States International Trade Commission
- Federal Communications Commission
- General Services Administration
The Order also excludes major portions of the Department of Health and Human Services, Department of the Interior, Homeland Security, FEMA, most of the Department of Energy, and major portions of the Department of Agriculture.
What Does the Executive Order Require of Agencies?
Guidance issued by OPM to agencies states:
Consequently, those agencies and subdivisions are no longer required to collectively bargain with Federal unions. Also, because the statutory authority underlying the original recognition of the relevant unions no longer applies, unions lose their status as the “exclusive[ly] recogni[zed]” labor organizations for employees of the agencies and agency subdivisions covered by Exclusions. (footnote deleted)
Agencies should consult with their General Counsels as to how to implement the
President’s directive in Exclusions. Agencies should also begin to consider and implement the changes described below and any others that agencies deem necessary, consistent with the President’s national security determination.
Some agencies with an obvious relationship to national security may be advised by their General Counsel to terminate the labor agreements and related labor relations actions immediately. It is not clear if this will happen. If the agencies take this action, it will be obvious in the very near future.
Union Reaction
As one would expect, federal employee unions were quick to react. The Executive Order puts their future existence in doubt as it would wipe out their source of revenue. AFGE wrote in a press release:
This administration’s bullying tactics represent a clear threat not just to federal employees and their unions, but to every American who values democracy and the freedoms of speech and association. Trump’s threat to unions and working people across America is clear: fall in line or else.
These threats will not work. Americans will not be intimidated or silenced. AFGE isn’t going anywhere. Our members have bravely served this nation, often putting themselves in harm’s way, and they deserve far better than this blatant attempt at political punishment.
AFGE is preparing immediate legal action and will fight relentlessly to protect our rights, our members, and all working Americans from these unprecedented attacks.
The unions will quickly file lawsuits. It is likely they will be filed in the District of Columbia, but may also appear in other jurisdictions where cases are filed with a reputation for deciding cases more favorably on these types of issues. Ultimately, the issue will go before the US Supreme Court.
What Does the Labor Relations Statute Contain on This Issue?
Here is the relevant language from the federal labor relations statute at 5 U.S. Code § 7103:
(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.
(2) The President may issue an order suspending any provision of this chapter with respect to any agency, installation, or activity located outside the 50 States and the District of Columbia, if the President determines that the suspension is necessary in the interest of national security.
The statute’s wording gives the president considerable authority in this area. While this law has been in effect since 1978, President Trump is broadly interpreting this language. It would not be surprising if a district judge would interpret this language in a more restrictive way. It would not be surprising if part of the logic in the expansive nature of the Executive Order anticipated what would happen, but it could still result in significant parts of the federal government being excluded from union activity.
The unions will file a lawsuit(s) quickly and ask for a temporary restraining order. A judge will rule on that fairly quickly, and the case(s) will proceed from that point.
What is 22 U.S. Code § 4103?
The new Executive Order also cites 22 U.S. Code § 4103 as a basis for the President’s actions. This section of the U.S. Code reads:
The President may by Executive order exclude any subdivision of the Department from coverage under this subchapter if the President determines that—
(1) the subdivision has as a primary function intelligence, counterintelligence, investigative, or national security work, and
(2) the provisions of this subchapter cannot be applied to that subdivision in a manner consistent with national security requirements and considerations.
This law applies to the Department of State, the Broadcasting Board of Governors, the Agency for International Development, the Department of Agriculture, and the Department of Commerce.
22 U.S. Code § 4103 gives employees in the Foreign Service “the right to form, join, or assist any employee organization and to engage in collective bargaining with respect to conditions of employment as provided in this chapter. The employees are entitled to the same protections and rights as other federal employees under labor laws.”
While the language in this law is also unambiguous with regard to the authority of the president to exclude employees, a court may conclude that the broad application of the exclusion of these employees from having a right to participate in union activities goes beyond the intent of Congress.
There is a good chance that this issue will also ultimately be determined by the US Supreme Court.
The Justice Department has already filed a lawsuit based on the president’s Executive Order against the American Federation of Government Employees (AFGE) seeking to release 8 federal agencies from their collective bargaining agreements with the union on the grounds that it is a national security threat.
How Will The Executive Order Impact Federal Employees and Unions?
This Executive Order expands on previous exclusions as outlined above. This means that employees and unions in these agencies may no longer have the same authority they have had in recent years to negotiate working conditions, pay, and other employment terms.
Additionally, the order mandates that agency heads reassign employees who previously engaged in union duties back to agency business once their collective bargaining agreements terminate. This will impact a union’s use of “official time,” under which a federal employee essentially works for a union but retains full federal employee salary and benefits.
There is likely to be a delay in implementing this in the federal government. It is controversial and will be challenged by unions in courts that may be sympathetic to their legal position. A favorable decision by the courts may ultimately determine whether the unions will survive in the federal government.
Impact on Collective Bargaining
The President also issued a “Fact Sheet” on this topic. Here are some of the reasons cited for the Order:
The CSRA enables hostile Federal unions to obstruct agency management. This is dangerous in agencies with national security responsibilities:
Agencies cannot modify policies in collective bargaining agreements (CBAs) until they expire. Agencies cannot make most contractually permissible changes until after finishing “midterm” union bargaining.
Unions used these powers to block the implementation of the VA Accountability Act; the Biden Administration had to offer reinstatement and backpay to over 4,000 unionized employees that the VA had removed for poor performance or misconduct.
The philosophy or opinion of the administration regarding unions is clearly stated in this fact sheet. This should not be a shock to those in the labor relations field.
Federal employee unions have clearly aligned with Democrats with endorsements, political donations, and statements supporting or attacking various administrations, and usually in favor of Democrats. President Trump is obviously using his authority to restrict the authority of federal employee unions.
An executive order does not have the same impact as a new law and can be changed by subsequent administrations. Unions will also use the legal system to challenge this Executive Order, and they will request a temporary restraining order and a judgment nullifying the Order. How this will play out in the courts remains to be seen—and it will probably go to the Supreme Court—and will determine the ultimate impact of this Executive Order.
