Judge blocks Trump order curtailing federal union rights, citing ‘plausible’ retaliation concerns

President Donald Trump’s rollback of collective bargaining rights for much of the federal workforce is on hold for now, following a federal judge’s preliminary injunction.

A federal judge in San Francisco is temporarily blocking 21 agencies from enforcing an executive order that barred collective bargaining for about a million federal employees, citing “national security” reasons.

The executive order President Donald Trump signed in March barred unions from representing employees at agencies that primarily focused on national defense, foreign relations, cybersecurity, border security and public safety.

Judge James Donato ruled Tuesday night that Trump “applied the national security label to an unprecedented swath of federal agencies, including whole cabinet departments for the first time in history,” and “greatly exceeded” the scope of any other similar executive order.

Donato also determined Justice Department attorneys representing the Trump administration “had a hard time” justifying how some agencies, like the National Institute of Allergy and Infectious Diseases, should primarily be considered as having a national security mission.

The American Federation of Government Employees, the lead plaintiff in the case, argued the Trump administration’s selective enforcement of the executive order — allowing agencies to recognize some unions while barring others — amounted to unconstitutional retaliation, targeting unions that speak out against the administration’s federal workforce polices and challenge them in court.

Donato said the court is not “second-guessing” the Trump administration’s national security determinations, but said unions raised legitimate concerns that the administration’s enforcement of the executive order targets specific unions in “retaliation for protected speech,” including challenging the administration’s federal workforce policies in court.

A White House fact sheet on the executive order called out “hostile Federal unions” and “certain Federal unions” who “have declared war on President Trump’s agenda” and who are “‘fighting back’ against Trump.”

The fact sheet also stated, “President Trump supports constructive partnerships with unions who work with him,” but “will not tolerate” unions who oppose his agenda.

Donato said the fact sheet “expressed a clear point of view that is hostile to federal labor unions and their First Amendment activities,” and “condemned unions who criticized the President and expressed support only for unions who toed the line.”

“None of this is to say that the Court will sit in judgment of the President’s national security determinations,” Donato wrote. “It will not. Rather, this is evidence in the record of a serious and plausible First Amendment question.”

AFGE National President Everett Kelley said in a statement Wednesday that federal employees have had the right to collectively bargain for decades, including during the first Trump administration, “and at no time have employees’ union rights caused concern for our nation’s national security.”

“Revoking these rights was clearly a retaliatory attempt to bust federal unions and wreak havoc on our nation’s workforce and the services they provide to the American people,” Kelley said.

Last month, a federal appeals court allowed the Trump administration to continue implementing the executive order. The majority in a three-judge panel determined unions didn’t have standing to challenge the executive order, because the Trump administration said it wouldn’t end collective bargaining agreements while the case makes its way through the courts.

The Office of Personnel Management told agencies they “should not terminate any CBAs until the conclusion of litigation or further guidance from OPM directing such termination.” But OPM also told agencies to “cease participating” in grievance procedures, pending arbitration to resolve labor disputes, or follow reduction-in-force provisions outlined in collective bargaining agreements.

Donato said unions presented evidence that at least two agencies, the State Department’s Passport Services agency and the Agriculture Department’s Animal and Plant Health Inspection Service agency, have terminated collective bargaining agreements with their unions. The preliminary injunction, he said, is meant to “preserve the status quo” of collective bargaining rights until trial.

Civilian federal employees have had collective bargaining rights for more than 60 years. A series of executive orders beginning in 1962 first outlined these rights, which were then codified into law under the Federal Service-Labor Management Relations Statute.

The FSLMRS allows the President to bar an agency or subcomponent from collective bargaining, if he determines it “has a primary function of intelligence, counterintelligence, investigative or national security work.”

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