President Donald Trump suffered a major legal setback last August in his effort to deconstruct the administrative state when a federal judge struck down key portions of three executive orders aimed at weakening federal unions and making it easier to fire government employees.
But since then, the administration has been achieving the same goals through a different avenue ― the bargaining table. And they’ve done it with an assist from presidential appointees whose job is to referee labor disputes within the federal government.
As federal agencies negotiate new union contracts with their workers, many have been pressing for the same types of management-friendly provisions Trump sought through the executive orders. Enabling this process has been the seven-member Federal Service Impasse Panel that, after Trump’s appointments, is now made up entirely of Republicans.
When an agency and a union reach a stalemate, the dispute goes before the impasse panel. The result is a very challenging environment for unions. In one recent case involving the Department of Health and Human Services, a union representing 14,000 workers at the agency lost the majority of its arguments before the impasse panel, which rewrote significant portions of the contract in favor of management.
The new rules would tighten up workers’ telecommuting rights, make it easier for supervisors to reject workers’ requests for leave, and allow the agency to start charging the union to rent office space ― one of the goals of Trump’s executive orders.
Union supporters say such changes are a bigger deal than they might seem. Federal unions generally cannot bargain over pay and major benefits. If agencies succeed in chipping away at the matters the unions can bargain over ― like the discipline process, telework arrangements and other work rules ― then some workers might not see a point in being members anymore.
“The administration has seemed to implement a strategy where they’re trying to dismantle federal unions,” said Joanna Friedman, a lawyer with the Federal Practice Group, a firm specializing in government employment law. “Or just take away the bulk of the meaningful rights that an employee gets from their membership, to the point where it’s meaningless.”
The Trump administration has made no secret of its goal to “rebalance” the federal government’s relationship with its unions, claiming the current system protects bad workers and costs too much. The White House has also pursued federal pay freezes, a record-setting government shutdown and job cuts through attrition, all of which have led some workers to look for the door.
Tony Reardon, president of the National Treasury Employees Union, said that while some agencies have been open to compromise, in many cases the White House’s stance on collective bargaining has amounted to “union busting.”
Reardon’s union represents the HHS employees. According to the union, HHS officials met for one day of bargaining and one day of mediation before declaring an impasse, leading the union to allege the agency hasn’t bargained in good faith.
“I’ve been at [my union] for almost 30 years,” Reardon said. “I will tell you I do not recall an agency so aggressively doing everything it can to ruin the relationship it has with its own employees.”
An HHS spokesperson said the agency acted properly. “HHS is working with employees and their union representation to improve the operations of the department with the aim of making the federal government a better place to work and better able to deliver the services to the American people,” the spokesperson said in an email.
I do not recall an agency so aggressively doing everything it can to ruin the relationship it has with its own employees. Tony Reardon, president of the federal worker union NTEU
Unions shouldn’t expect many friends on the impasse panel these days, given the members’ backgrounds. One worked for the right-wing American Legislative Exchange Council and the conservative Heritage Foundation. Another hails from the conservative Mackinac Center and has testified in favor of right-to-work laws. One is even the president of a law firm devoted to serving clients “hurt by public employee union officials.” The panel’s members are appointed by the president and don’t need Senate confirmation.
Kimberly Moseley, the panel’s executive director, said its members let their decisions speak for themselves. She noted that dating back at least to the era of President Bill Clinton, both Democratic and Republican administrations have tended to stock the panel with members of their own parties. Even so, a typical case is “never as easy as ‘you win, you lose,’” said Moseley, who is neither a presidential appointee nor a member of the panel. “It’s generally a mix of the two.”
Still, federal unions don’t feel like they’ve been catching many breaks. The Treasury employees union did its own analysis of more than 25 cases the panel has dealt with in the Trump years and found that management came out ahead in roughly 90% percent of them. Moseley said that finding sounds high to her.
The impasse panel is part of the Federal Labor Relations Authority (FLRA), the body that administers federal union elections and resolves labor complaints. The authority has three members who are Senate-confirmed, and it currently has a 2-1 Republican advantage. Unions say that in general, the authority has taken on a dramatic “pro-agency” bent in the Trump years when it comes to settling disputes.
Unions have bristled at the FLRA’s willingness to overturn arbitration decisions that had gone in their favor. The Federation Education Association, a union representing teachers in Department of Defense schools, filed a lawsuit in federal court against the authority in February. According to the union’s math, in the first 94 cases taken up by the FLRA with its current GOP majority, the authority overruled 51 arbitrators who’d ruled in a union’s favor ― while not overruling any arbitrators who’d sided with a particular federal agency.
“Essentially, the Union never prevails,” the lawsuit claimed.
At the same time, the FLRA has not been able to prosecute “unfair labor practices,” in which an agency or union is accused of breaking labor law. That’s because since Trump assumed office, the authority has not had a Senate-confirmed general counsel, who would be responsible for acting on such charges.
Unions say the lack of a general counsel has been a significant disadvantage. Democrats on the House Oversight Committee have grown concerned about a growing backlog of unfair labor practice charges by federal unions and have asked the FLRA to turn over information on the problem.
“We’re continuing to file [unfair labor practice charges] as they come up, but they just sit there,” said Jeff Friday, the general counsel for the National Federation of Federal Employees, another federal union. “They’ve been sitting there for two years.”
Friday said one member of his union was fired, only to have an arbitrator order that he be reinstated. The worker wasn’t put back on the job, so the union filed an unfair labor practice charge. The charge hasn’t been pursued and the man still isn’t working, Friday said.
The administration has seemed to implement a strategy where they’re trying to dismantle federal unions. Joanna Friedman, lawyer with the Federal Practice Group
The good news for unions is that Trump finally offered a nominee for the general counsel post in March. The bad news for the unions is the nominee oversaw the bargaining at HHS, where the union accused her of violating employees’ rights, as Bloomberg Law reported.
The way the White House has shaped the impasse panel and the FLRA has made unions reluctant to appeal to them, said Timothy Shamble, the president of the American Federation of Government Employees Local 1812. His union spent years negotiating a contract for employees at Voice of America, the government-funded news organization that’s part of the U.S. Agency for Global Media. Shamble said it seemed like the two sides had settled on a contract, until Trump issued his executive orders last year.
Since then, Shamble said, the agency has been trying to change the contract. “That’s the blueprint,” he said. Agency officials are “imposing their changes based on the goals of the executive orders.”
Still, he isn’t eager to get the dispute in front of regulators.
“I wouldn’t want to be there now,” Shamble said.