Baseball is a game of adjustments. If a pitcher has struck you out twice on pitches off the plate, as a hitter, you need to adjust your strategy.
It seems that the unions are having a difficult time at the plate against the Trump Executive Order (E.O.) 14251. It’s getting late in the game, the unions are scoreless, and if they want to get a hit, they may need to adjust their strategy before the game is over.
Thus far, the unions have focused their arguments around irreparable financial harm, loss of bargaining power, and the E.O. being retaliatory in nature because the unions have exercised their First Amendment right to speak freely and oppose many of the Administration’s initiatives. While I’m not privy to their litigation strategy, they may want to take a different approach, as now the Ninth Circuit and D.C. Circuit have both ruled against them on those points.
The Federal Service Labor-Management Relations Statute, 5 U.S.C., Chapter 71 (FSLMRS) § 7103(b)(1) provides that 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”. (Emphasis added.)
While some may think that presidents rarely exercise this authority, as noted in the Ninth Circuit’s decision, since the passage of the FSLMRS, every president (with the exception of President Biden), including President Obama, has issued an E.O. that excluded agencies or subdivisions for coverage under the Statute but in a more targeted manner than President Trump’s E.O. (e.g. White House Communications Agency, U.S. Special Operations Command, U.S. Cyber Command, Department of Energy Office of Intelligence and Counterintelligence, etc.).
While the courts hesitate to insert themselves in national security matters, I wonder if they would give the same deference to the Administration if there were questions regarding the legality of the E.O. itself? Maybe that’s the unions’ next step in their litigation strategy, but it would be interesting to see if the unions will force the Administration to address specific organizational national security determinations and the contradictory nature of the E.O.
For example, in the Department of Defense, there are non-appropriated fund activities that provide recreational services such as the management of golf courses and bowling alleys or manage grocery and liquor sales.
It would seem that the Administration would be hard-pressed to make an argument that an organization with employees who schedule tee times, hand out bowling shoes, or work the cash register at the grocery store has a primary function of intelligence, counterintelligence, investigative, or national security work, but the police force that has responsibility for protecting the Pentagon and all of its national security elements, as well as the various police that protect other national security elements throughout the country, can continue to be in bargaining units.
To add to the contradictory (some might say arbitrary) nature of the E.O., the President delegated the authority to the Secretaries of Defense and Veterans Affairs to issue orders suspending the application of E.O. 14251 to any subdivision of departments they supervise, bringing those subdivisions back under coverage of the FSLMRS.
If the Secretary reverses the President’s order and reinstitutes collective bargaining rights, as the Secretary of Defense did for a munitions plant, is that contrary to law, since the Statute provides that the President has the authority to make those organizational determinations and issue orders?
Also, the FSLMRS at § 7112 (a) provides that the Authority (Federal Labor Relations Authority) shall make appropriate unit determinations, which includes which employees will be included or excluded from bargaining units.
E.O. 14251, Section 2, provides: “Notwithstanding the forgoing, nothing in this section shall exempt from the coverage of Chapter 71 of Title 5, United States Code: (a) the immediate, local employing offices of any agency police officers, security guards, or firefighters, provided that this exclusion does not apply to the Bureau of Prisons;”.
A large majority of police, firefighters, and security guards are not in stand-alone bargaining units and organizations. Even if they are, there are usually other employees, such as administrative support staff, that are in the organization to assist with managing the day-to-day operations of the organization.
When a President exercises his authority to exclude an agency or subdivision from coverage, he must attest that 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.
As such, it would seem that the President must make an overall organization-based decision, not just certain positions. Could the unions make a plausible argument that the E.O., by carving out police, firefighters, and security guards, has, in effect, made individual employee-based inclusion and exclusion determinations, which, by law, can only be made by the Authority?
The unions are in the bottom of the eighth inning, still looking to score. We’ll see how they fare in the bottom of the ninth.
Ed Davis recently retired from the federal government to pursue other endeavors in the private sector. He has over 20 years in federal-sector human resources in a number of agencies, with a majority of his two decades of experience in labor and employee relations.
