Unions’ battle for survival hit new wave with Trump termination of bargaining agreements

Federal employee unions are bracing for battle after courts have lifted a series of injunctions that were stalling the Trump administration’s plans to end collective bargaining rights at a number of agencies.

Trump in March signed an executive order laying the groundwork for a sweeping rescission of a number of existing union contracts at government agencies. The administration argues 18 different departments have sufficient national security roles to qualify under a law allowing the suspension of union rights at such agencies.

Since the most recent lifting of an injunction earlier this month, the Trump administration has canceled previously-signed collective bargaining agreements with at least five agencies, and more are expected.

Unions acknowledge they are facing a “setback” and must rethink aspects of their strategy for survival under Trump. 

“This ruling is certainly a setback for fundamental rights in America,” Everett Kelley, president of the American Federation of Government Employees, the largest federal employee union, said in a statement earlier this month.

Unions had argued that Trump was using national security as a pretext to go after organizations that have been vocal in challenging many other administration policies.

But a panel of the 9th Circuit Court of Appeals agreed to a Trump administration request to lift the last of several lower court injunctions that broadly blocked implementation of the order. The panel rejected arguments that Trump’s order and an accompanying fact sheet blaming “hostile” unions for trying to “obstruct agency management” were a sign of the true aim of the order.

“Even accepting for purposes of argument that certain statements in the Fact Sheet reflect a degree of retaliatory animus toward Plaintiffs’ First Amendment activities, the Fact Sheet, taken as a whole, also demonstrates the President’s focus on national security,” the court determined.

In the two weeks since, the Trump administration has quietly terminated collective bargaining agreements at the Department of Veterans Affairs, the Environmental Protection Agency, USDA Food Safety Inspection Services, U.S. Coast Guard, U.S. Citizenship and Immigration Services and the Federal Emergency Management Agency.

Court battles on the executive order are still continuing on the merits, and a lower court judge on Thursday sided with the Federal Education Association, granting an injunction that would bar any termination of union contracts at the Department of Education.

But as the legal wrangling continues, many unions are in a fight for their very existence.

“For sure, we are going to fight for our existence. It's very unsettling and very disturbing that the 9th Circuit issued the ruling that they issued. I don't think that any president should have any unfettered authority that goes unchecked,” Kelley, the president of AFGE, told The Hill this week.

“That's a portion of the reason why unions exist, to make sure there's checks and balances inside of the agencies.”

The American Foreign Service Association (AFSA), which represents employees at the State Department and other related agencies, also sees it that way.

“The very nature of diplomacy is one of collaboration. It is one of bringing disparate parties together in order to get the input from all people involved, to find a commonality and an agreed upon way forward that isn't just done by ambassadors sitting in foreign ministries talking to heads of government,” said John Dinkelman, president of the group. 

“It percolates down to the very depths of our profession. And what I've seen over the past six months is a stifling of the ability to extract from employees the full value of their potential input. Because, frankly, people are afraid,” he added, noting one employee who asked to have their name removed from articles they had written in AFSA’s journal expressing support for previous administration policies.

But unions are also stuck in a Catch-22, facing dead ends in other avenues where they might dispute the termination of their contracts, including the Federal Labor Relations Authority (FLRA), which governs federal employee unions.

“We did file an unfair labor practice saying you've breached our collective bargaining agreement. But unfortunately, as expected, the FLRA has said, ‘Hey, you're not recognized as a union right now, so we're putting this all on hold until all the until your court case is finished,’” said Sharon Papp, general counsel with AFSA.

Trump fired the Democratic-appointed chair of the FLRA, Susan Grundmann, in February, despite her confirmation to a five-year term. Though a lower court initially reinstalled her, an appeals court in June removed her from her post while the legal battle continues.

Unions are still hopeful that courts will ultimately side with their arguments that Trump’s move is largely a retaliatory effort, but in the meanwhile, with the order now in effect, agencies can halt the collection of dues and are no longer communicating with union leads.

Papp said she feels the plain language of the executive order makes clear the intent.

In the fact sheet, the White House wrote that “unions have declared war on President Trump’s agenda” and that while he supports “constructive partnerships with unions who work with him; he will not tolerate mass obstruction.”

“They don't like unions that don't get in line,” Papp said.

“They don't like unions that didn't support Trump when he was running for election, and so it has nothing to do with national security. It has to do with going after unions who gave Trump a hard time by filing lawsuits, by filing grievances, and it's plain in the language that came out with the executive order.”

But she said some of the union’s members worry about their affiliation and have declined to have a union representative present at disciplinary hearings.

Nurses at the VA also see it as a response to their pushback on Trump plans they said would diminish care for patients.

“This is just the latest salvo in the battle to break the spirit of working people in this country,” National Nurses United said in a statement after their contract was among the first to be terminated following the court ruling.

“Nurses never abandon our patients, and we will continue to fight for the funding and safe staffing levels that our patients deserve. As union nurses, we understand that collective bargaining rights are fundamental to carrying out our critical role as patient advocates.”

Despite the perception by many in the GOP of unions as left-leaning organizations, this week the Republican National Congressional Committee (NRCC) noted a shift.

“The Teamsters contributed to the NRCC and a sprawling list of House Republicans - signaling a monumental shift of working class voters towards the GOP,” the organization highlighted in an email.

Beyond the court battles, unions are hopeful Congress could take up a discharge petition that would force the House to take a vote on a bill that would overturn Trump’s March order.

Though Democrat-led, the bill has also secured seven GOP co-sponsors, enough to pass the House if it was brought to the floor. Two Republicans have also backed the discharge petition effort: Reps. Brian Fitzpatrick (R-Pa.) and Don Bacon (R-Neb.).

“I know that everyone who co-sponsored this legislation, no matter their party, did so because they know workers' rights are worth defending. They know that when workers collectively bargain, the result is a fairer workplace with dignity and respect. They know this order undermines core American values and leaves workers open to unfair treatment and political interference,” Rep. Jared Golden (D-Maine), who is leading the legislation, said in a press conference highlighting the effort.

“If every member who signed onto this bill shows the courage of their convictions and joins us, we can overturn this union-busting executive order.”