Last week, pursuant to President Donald Trump’s March 27 executive order, the federal government unilaterally voided the collective bargaining agreements (CBAs) covering almost 400,000 Veterans Administration (VA) employees. Since then, it has also voided contracts covering tens of thousands more at the Environmental Protection Agency (EPA), the Federal Emergency Management Agency, and Citizenship and Immigration Services. These moves also end all payroll dues collection by these workers’ unions, throwing them into desperate financial jeopardy.
As Hamilton Nolan has pointed out, this is 2.5 percent of all American unionized workers — making this “by far the largest single action of union-busting in American history.” At least that many more are still at risk under the same executive order, while an earlier federal order to strip almost 50,000 Transportation Security Administration workers of their contractual bargaining rights is temporarily on hold.
Meanwhile, another 154,000 federal workers, many fearing layoffs as a result of separate “reduction in force” orders, have accepted various resignation incentives; numerous others, so far uncounted, have been laid off or fired.
Trump of course wielded the butcher’s knife here, while two different “liberal” appellate courts accepted at face value what turned out to be Justice Department lies and struck down lower court injunctions halting his actions. But what should we say about the various federal employee unions, which utterly failed to mobilize their members last spring and pegged all their hopes on legal strategies? Or the rest of the labor movement, which has done nothing to support these workers other than to mouth platitudes about “fighting”?
What does it mean for federal workers when the contracts they work under are voided? Those contracts provided standards, among other things, for vacation allocation, sick leave usage, travel reimbursement, promotions, and overtime pay. They established procedures for evaluations, telework implementation, training, layoffs, and much more. Now perhaps there will be federal or agency-wide standards for some of these matters, or perhaps many of them will be subject to the whims of individual managers, now freed to be petty dictators.
Those contracts also stipulated consultation and grievance procedures to address safety and health concerns and disputes about work and workload. They provided for union representatives to be released from work to monitor management adherence to the bargaining agreement, speak up for workers, and represent them at disciplinary hearings. With the collective bargaining agreements (CBAs) voided, workers’ only recourse in disciplinary matters is the statutory Merit Systems Protection Board, itself unable to reverse unwarranted firings or layoffs because it has lacked a quorum since Trump fired one of its members.
Effectively then, all these workers are now “at will” employees, subject to firing, layoff, discipline, and unilateral changes in work and working conditions at any time, and with no means of appeal.
Applying to different agencies, two statutes, 5 U.S. Code § 7103 and 22 U.S. Code § 4103, each state that if an “agency or subdivision has as a primary function intelligence, counterintelligence, investigative, or national security work,” a president may void CBAs.
Trump has interpreted this wording to include all or most employees at the Department of State, the Department of Defense, the Department of the Treasury, the Department of Veterans Affairs, the Department of Justice, the Food and Drug Administration, the Centers for Disease Control and Prevention, the Administration for Strategic Preparedness and Response, the Office of Refugee Resettlement, the Administration for Children and Families, the National Institutes of Health, the Department of Homeland Security, the Department of the Interior, the Department of Energy, the Environmental Protection Agency, the United States Agency for International Development, the Nuclear Regulatory Commission, the National Science Foundation, the United States International Trade Commission, the Federal Communications Commission, the General Services Administration, the Social Security Administration, the Office of Personnel Management, the Food Safety and Inspection Service, and the Animal and Plant Health Inspection Service.
Explaining its theory, the Justice Department claimed that “the VA [has] a primary national security function, making the agency the backstop medical provider for American troops in times of war or any national emergency that involves armed conflict. Congress has also tasked the VA with providing medical services during national disasters and national emergencies.”
As for the EPA, a primary function “is investigative work, namely conducting criminal and civil investigations into environmental violations.” The government interprets the term investigative work to mean work that involves “search[ing] into so as to learn the facts; inquir[ing] into systematically” — a definition so broad it might cover any federal worker who sits at a computer or asks a question of a client.
Across the labor movement, some major unions were completely silent about Trump’s declaration; others issued statements claiming that they were upset but managed to avoid using the word “Trump,” presumably to give them the leeway to kiss the ring later. The most common response was to complain, even to use the word “fight,” but then suggest either no action whatsoever or the tamest ones imaginable — like the American Federation of Labor and Congress of Industrial Organizations (AFL-CIO) did in suggesting people call Congress.
The two largest federal unions, the American Federation of Government Employees (AFGE) and the National Treasury Union, did nothing to mobilize their members — but they did file lawsuits in Washington and California challenging the “national security” designation and claiming Trump’s actions were retaliation for protected First Amendment speech criticizing Trump. Those suits were initially successful at the district court level, with two judges issuing preliminary injunctions prohibiting the voiding of CBAs, finding that the unions’ lawsuits were likely to succeed “on the merits” and that, in the meantime, the unions and their members would suffer “irreparable harm.”
But then appellate courts in both regions “stayed” those injunctions from taking effect. In Washington, the court ruled that it was Trump who would suffer irreparable harm from the injunctions “impeding his national-security prerogatives,” and argued that “preserving the President’s autonomy under a statute that expressly recognizes his national-security expertise is within the public interest.” The California court added that an injunction “ties the government’s hands . . . in the national security context.” It declined “to assess whether the President’s stated reasons for exercising national security authority . . . were pretextual [a lie].”
Even though the government had removed from its decertification order eight unions and locals that had not joined the legal action, there was no retaliation, the California court said, since “the government has shown that the President would have taken the same action even in the absence” of the unions’ criticism of Trump.
Then both courts applied the coup de grâce. In Washington, the court was comforted by what it called “the Government’s self-imposed restrictions.” Government lawyers in both venues cited a “fact sheet” that directed agencies to “not terminate any CBAs until the conclusion of litigation or further guidance from OPM [Office of Personnel Management] directing such termination.” Because of “the direction to agencies to refrain from collective bargaining agreements until litigation has concluded,” the California court wrote, any claim of irreparable harm to the unions or their members was purely “speculative.”
As we know, both courts’ reliance on this “fact sheet” assurance was a complete fantasy. After the California ruling, it took only five days for that “speculation” to turn into the hard brutal facts of losing all contractual rights. Gone from the government’s statements were any “national security” claims. Instead, we have the typical management mantras of wasteful “union time,” “poor performers,” and “union bosses.”
What has unfolded since March was obvious; so was the tragically inadequate response of labor. In an article for Jacobin this spring, I compared the federal unions’ legal-only strategy with that of 1970 postal workers who, facing the potential loss of their civil service status (and grumbling about low pay), took militant strike action. Seeing other federal workers demanding similar efforts, President Richard Nixon’s right-hand man H. R. Haldeman feared “radicalization, a national strike, other walkouts, i.e., Teamsters, Air Traffic Controllers [who were about to start a sick-out], etc. to cripple whole country at once.” In a matter of days, Nixon flip-flopped from making threats against the postal workers to making promises to them.
One factor that helped precipitate that strike is missing today: postal strikers — particularly in New York, where the strike started — were part of a widespread upsurge of labor militancy. Yet, as I wrote then,
many of the conditions that led to postal success have echoes today: The insults to federal workers’ dignity when Trump says most of them hardly work. The growing likelihood of support from at least significant sections of the American public, as manifested in the “Hands Off!” demonstrations across the United States earlier this month. At least the glimmer of possibility of real solidarity, through work stoppages and other job actions from other unions that see the target on their backs, including the 600,000 postal workers who are facing calls for USPS privatization. Above all, the legitimacy of workers’ demands to maintain their livelihoods and their union contracts.
Months later, do those conditions still apply? Holding to the strategy of the courts, the federal unions have squandered their most precious resources — the feeling of urgency and anger among their members, and time. And, of course, going forward, they will have far fewer resources to mobilize their dwindling number of members — even if they were inclined to change their spots.
Back in March, veteran labor organizer Stephen Lerner declared that “For Labor, Caution Is Fatal: The riskiest course is to stay the course.” His article is well worth reading for its demand that labor do something different: to make an effort to build and exercise power. And it is a must-read with the terrible retrospective knowledge that here we are, five months later, still staying the course.
Perhaps some spark will still set off the disruptions, both on and off the job, we so desperately need. Meanwhile, the AFL-CIO has pegged its hopes on getting Congress to pass the Protect America’s Workforce Act, which would overturn Trump’s executive orders voiding federal workers’ bargaining rights. (Why the labor federation would expect Trump to sign into law a bill overturning his own executive orders is anyone’s guess.) As long as this type of delusion and denial remains, it seems labor’s only direction is from the frying pan directly into the fire.
Great Job Marc Kagan & the Team @ Jacobin Source link for sharing this story.
