On March 28, 2025, the Administration issued a new executive order, purporting to exclude union rights and collective bargaining agreements at agencies across the executive branch. 

Under 5 U.S.C. § 7103(b)(1) (and its parallel provision for the Foreign Service, 22 U.S.C. § 4013(b)), the President is authorized to exclude from federal collective bargaining rights employees at agencies (or components of agencies) which the President by executive order designates as having “as a primary function intelligence, counterintelligence, investigative, or national security work,” and for which the union and collective bargaining rights “cannot be applied […] in a manner consistent with national security requirements and considerations.”  This precise language dates back to Section 701 of the Civil Service Reform Act of 1978 and Section 1003 of the Foreign Service Act of 1980, although it bears some similarities to the limited exclusion found at Section 16 of E.O. 10988, F.R. Doc. 62-700 (January 17, 1962)[F.R. Doc. 62-700; Filed, Jan. 18,1962], the Executive Order which first established collective bargaining for federal sector unions under President Kennedy   (as slightly modified by President Nixon in Section 3 of E.O. 11491, in 1969, 34 Fed.Reg. at 17,606-17,607 (October 31, 1969).  Those exceptions chiefly excluded “the Federal Bureau of Investigation, the Central Intelligence Agency, or any other agency, or to any office, bureau or entity within an agency, primarily performing intelligence, investigative, or security functions.”  See E.O. 10988, Section 16.  H.R. Rep. 95-1403 at 39, part of the legislative history for the Civil Service Reform Act, described the purpose of this provision as creating “a procedure through which any other agency may apply for exclusion on national security grounds.”  The transcript of the debates on the Foreign Service Act (at 471) recognized the language as borrowed from the Civil Service Reform Act, and described the exception as applying to agency components which are “primarily an intelligence, investigative, security operation.”  The primary listing of agencies subject to these exceptions was in E.O. 12,171, originally issued in 1979 but amended by subsequent presidents as recently as 2017.  With a few limited exceptions, the overall list tracked the colloquial understanding of agencies associated with intelligence, investigation or national security work, chiefly certain law enforcement and investigation, Intelligence Community, nuclear weapons and defense agencies.    

The new executive order massively expands this E.O. 12,171 listing to now declare a wide variety of government functions to now be “national security,” and thus outside the scope of collective bargaining protections.  The expansive reading of national security functions of various sorts now includes agencies as wide-ranging as the entire Departments of Veterans Affairs and State, the EPA, the Bureau of Land Management, the Office of Refugee Resettlement, Administration for Children and Families within HHS, the FDA, FEMA, the National Science Foundation, the FCC and the General Services Administration.  The Secretaries of Defense and Veterans Affairs were given discretion to exclude certain portions of their agencies from the executive order, and the Secretary of Transportation was delegated authority to pick which portions of that agency would be excluded from collective bargaining rights.  The only categorical exclusions within listed agencies were agency police officers, security guards, or firefighters not at the Bureau of Prisons, and certain portions of the Marshals Service. 

Agencies were given 30 days to request that additional agencies or units be added to the list of units excluded from collective bargaining.  The executive order directed that all employees performing non-agency union business be reassigned to perform solely agency business, and to terminate agency participations in any grievances or unfair labor practice cases which involved affected employees, as soon as the collective bargaining agreements were terminated.  The executive order did not specify the precise timeframe when any preexisting collective bargaining agreements would be deemed terminated.  

OPM contemporaneously issued a new guidance memorandum, providing a list of personnel policies that agencies should now apply to former bargaining unit employees once collective bargaining agreements were terminated, many of which derive from E.O. 13,836, 13,837 and 13,839, previously analyzed in this blog, which had been rescinded by President Biden under E.O. 14,003 (as analyzed in this blog), a rescission cancelled by President Trump after the start of the new administration.   These include the following: 

  • Limiting performance improvement periods (PIPs) for performance-based discipline to 30 days, with agencies to consider using either Chapter 75 or Chapter 43 for performance-based actions; 
  • Directing the Department of Veterans Affairs to resume use of the truncated adverse action removal procedures under 38 U.S.C. § 714 (previously discussed in this blog); 
  • Cancelling participation in any union grievances or arbitrations for affected employees; 
  • Disregarding any reduction in force (RIF) procedures in collective bargaining agreements; 
  • Ordering affected employees to return to the office (as discussed in this blog) who had not returned due to collective bargaining agreement provisions; 
  • Cancelling official time for union business and requiring any employees assigned to work on union duties to solely work on agency business; 
  • Cancelling provision of agency office space to unions; and 
  • Discontinue payroll deductions for union members for union dues. 

The guidance memorandum also did not specify the precise timeframe when any preexisting collective bargaining agreements would be deemed terminated. 

According to press reports, at least one federal sector union has already announced that it is considering legal action regarding this new executive order. 

If you are a federal employee or federal sector union and wish to discuss your rights in this situation, consider contacting Gilbert Employment Law to request an initial consultation.