WASHINGTON, D.C. (Bloomberg Law) — The Trump administration’s attempt to leverage a little-used law covering national security-related workers in order to cancel union contracts across the federal workforce is poised to draw lawsuits claiming it was misapplied to hundreds of thousands of government employees.
President Donald Trump on Thursday night directed dozens of federal agencies and offices to terminate their union contracts. His order pointed to a 1978 law that empowers the president to prohibit employees whose work “directly affects national security” from organizing.
The order is the latest volley in Trump’s battle to expand his power over career federal workers. Unions say they will challenge the order in court, as they have with the president’s decision to fire tens of thousands of their members and weaken their job protections.
“This executive order is plainly retaliatory,” said American Federation of Government Employees President Everett Kelley, which represents more than 800,000 federal workers. “They are taking this action because AFGE is standing up for our members.”
Presidents Jimmy Carter and Ronald Reagan each used the same 1978 law to exclude smaller portions of the government workforce from federal labor protections, including the right to join a union and collectively bargain. In Reagan’s case, the US Court of Appeals for the D.C. Circuit upheld his decision to exclude portions of the US Marshals Service, rejecting a legal challenge brought by AFGE affiliates.
The scope of Trump’s action is much broader than Reagan’s, potentially covering hundreds of thousands of workers, and his rationale for many of those selections are questionable, said Allen A. Shoikhetbrod, an attorney at Tully Rinckey PLLC. The wide-ranging order touches workers that aren’t clearly involved in national security, such as those who evaluate drug applications, administer veterans’ benefits, and inspect food products.
To exempt agencies from union rights, the statute requires that the president determine their primary functions include “intelligence, counterintelligence, investigative, or national security work,” and that the contract can’t be applied to the agency in a way that’s inconsistent with national security needs.
“What the president seems to be doing here is essentially changing or trying to change what the primary functions of these agencies are to meet this definition,” Shoikhetbrod said.
Apart from the 1978 statute, Trump has authority under Article II of the Constitution to direct the executive branch as he sees fit, including to reduce headcount, without being restrained by government unions, said Jacob Huebert, an attorney and president of the Liberty Justice Center, which argued successfully at the US Supreme Court to ban mandatory union dues for government employees in Janus v. AFSCME.
“Public sector unions make government cost more than it should cost and get in the way of making changes, including changes for the better,” he said.
