Union-Busting in the Guise of ‘National Security’: Appeals Court Lets Trump End Federal Workers’ Rights

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By Steve Wishnia

In a ruling the American Federation of Government Employees [AFGE] denounced as “a setback for fundamental rights in America,” a federal appeals court in California on August 1 lifted an injunction preventing the Trump regime from terminating collective-bargaining rights for an estimated two-thirds of the federal workforce.

The Ninth Circuit Court of Appeals held that the argument by six federal workers unions against Trump’s March 27 executive order nullifying their contracts—that it was retaliation for their exercising their right to dispute policies such as massive layoffs—was irrelevant, because “the President would have taken the same action even in the absence of the protected conduct.” 

The injunction, issued June 24 by U.S. District Judge James Donato, enjoined the administration from cancelling union contracts at dozens of agencies. They included the Departments of State, Defense, Treasury, Justice, and Veterans Affairs; the Food and Drug Administration; the Centers for Disease Control; the Environmental Protection Agency; the National Science Foundation; the now-decimated U.S. Agency for International Development; the General Services Administration; and the Federal Communications Commission. 

Trump’s order said those agencies and subdivisions were “hereby determined to have as a primary function intelligence, counterintelligence, investigative, or national security work.” Thus, it said, the 1978 Federal Service-Labor Management Relations Statute—which declared that federal workers having unions “safeguards the public interest” and “encourages the amicable settlements of disputes”—could not be applied to them “in a manner consistent with national security requirements and considerations.”

Judge Donato had held that AFGE and the five other unions that challenged the order were likely to win their case. There was strong evidence, he wrote, that it was retaliation for the unions opposing Trump policies, and that defining an unprecedented number of agencies as “national security” was a pretext for union-busting.

“We question whether we can take up such arguments,” the three Ninth Circuit judges—two appointed by Trump, one by Barack Obama—responded; it would be second-guessing the President’s decisions on national security. 

The administration’s fact sheet on the order, they said, had stated that the 1978 labor-relations law allows unions to “obstruct agency management,” including by impeding the removal of employees for “poor performance or misconduct.” Therefore, it made it clear that the executive order “advances national security by curtailing union activity that undermines the agile functioning of government offices with national security-related missions.”

“We remain fully committed to fighting this case on the merits and are confident in our ability to ultimately prevail,” AFGE National President Everett Kelley said in a statement. “This is not a final ruling on the merits of our lawsuit,” the union said.

But until the lawsuit is decided, the appeals-court ruling will let government agencies proceed with refusing to process grievances or bargain over issues such as work-schedule changes. According to Judge Donato’s ruling, the amount of dues AFGE collected fell by more than 80% within a month of the order.

The Department of Veterans Affairs cancelled union contracts for all workers except police, firefighters, and security guards on Aug. 6. 

‘Hostile Federal Unions’

The Trump administration’s animus toward unions was obvious in the fact sheet it put out about the executive order.

Collective bargaining “enables hostile Federal unions to obstruct agency management,” it said. For example, “agencies cannot modify policies in collective bargaining agreements until they expire.” 

It complained that unions at the Department of Veterans Affairs had filed “70 national and local grievances over President Trump’s policies since the inauguration,” and had forced the Biden Administration “to offer reinstatement and backpay to over 4,000 unionized employees that the VA had removed for poor performance or misconduct.”

The VA fired more than 4,500 people, mostly low-level employees, during Trump’s first term, under a 2017 law that gave the department head power to terminate workers within 15 business days and lowered the standard of evidence for showing a cause. AFGE charged that the administration had refused to bargain over how to implement the law and that workers had been unfairly sacked. In a 2023 settlement, the department agreed to rehire about 120 workers and give about 1,700 more an average of $80,000 in back pay. Those found to have committed “grievous misconduct” were barred.

“President Trump refuses to let union obstruction interfere with his efforts to protect Americans and our national interests,” the fact sheet concluded. “President Trump supports constructive partnerships with unions who work with him; he will not tolerate mass obstruction that jeopardizes his ability to manage agencies with vital national security missions.”

That fact sheet, Judge Donato wrote, “condemned unions who criticized the President and expressed support only for unions who toed the line. It mandated the dissolution of long-standing collective bargaining rights and other workplace protections for federal unions deemed oppositional to the President.”

He was also skeptical about the administration’s claim that huge parts of the federal government’s primary function was “national security.” The 1978 law’s national-security exemptions were the FBI, CIA, the National Security Agency, and the Secret Service. A 1979 executive order by President Jimmy Carter, cited by the Trump regime as precedent, added exemptions for subdivisions such as the Navy’s Fleet Intelligence Center and the technical training wing at an Air Force base in Texas.

“The government itself had a hard time saying why an agency like the National Institute of Allergy and Infectious Diseases might be properly regarded as having a primary mission of national security,” Donato noted.

“A claim of national security does not, of course, automatically negate the Constitution, particularly with respect to the First Amendment,” he added.

The ‘National-Security Exception’

The appeals court was letting the Trump administration invoke “the national-security exception to all constitutional rights,” Anne Lofaso, a former National Labor Relations Board attorney who is now a law professor at the University of Cincinnati, told Work-Bites.

When the unions’ lawsuit comes to trial, she said, the government will have to present evidence why each specific agency had a national-security function, and why police and firefighters’ unions were exempted. But she’s pessimistic: Courts usually don’t question government claims of “national security.”

Unions can’t prevent employers from firing workers, Lofaso added. They can only insist on due process. In her experience as an official in the NLRB Professional Association union, management lost grievances because “they made a mistake, they didn’t follow their own rules.” For example, they fired workers without offering them a “PIP,” a performance-improvement program that gives them a chance to save their job.

Federal unions are relatively weak, she says: They can’t strike, and they can’t bargain over pay or benefits, which are set by law.

But she does find the appeals court’s “Trump would have done it anyway” argument logically plausible, and possibly even legally valid. Employers are often autocratic: They don’t want workers to have the power to say no. 

Donald Trump is very far from an exception to that. 

“Unions are institutional dissenters,” Lofaso avers. “Unilateral decision-making is always more efficient than a democracy. Unions are democratic. It takes time.”