Labor & Employment Law Daily Wrap Up, LITIGATION NEWS, TRENDS—Union files challenge on behalf of Patent Office employees whose bargaining rights are impacted by latest EO, (Sep 4, 2025)

By Brandi O. Brown, J.D.

“NTEU’s advocacy for federal workers—and against this Administration’s anti-worker policies—has led to the President retaliating against NTEU in an unprecedented way: by issuing executive orders stripping NTEU-represented workers of their statutory rights to collectively bargain.”

The National Treasury Employees Union has filed a new suit against the Trump administration following the issuance of a second executive order (EO) excluding from the Federal Labor-Management Relations Program, among others, the Office of the Commissioner for Patents (the Patents Office), a component of the U.S. Patent and Trademark Office (PTO). NTEU represents bargaining unit employees in the Patents Office. The complaint, which alleges that the EO is ultra vires and that it violates the First Amendment, seeks declaratory and injunctive relief.

Retaliatory animus. “With respect to the Exclusions Order,” the complaint states, “the President’s exemptions were retaliatory and not based on the statutory criteria. The Administration’s own issuances show that the President’s exclusions were not based on national security concerns, but instead a policy objective of making federal employees easier to fire and political animus against federal sector unions.”

“NTEU’s advocacy for federal workers—and against this Administration’s anti-worker policies—has led to the President retaliating against NTEU in an unprecedented way: by issuing executive orders stripping NTEU-represented workers of their statutory rights to collectively bargain.”

Quoting from the court’s opinion in another case brought by the union, the complaint adds, “The exemptions thus “reflect President Trump’s frustration with the unions’ representational activity and exercise of their First Amendment rights... and the impact those activities have had on his policy directives.”

Collective bargaining in federal service. The Federal Service Labor-Management Relations Statute provides a comprehensive statutory framework to govern collective bargaining in the federal civil service. The statute guarantees federal employees the basic rights to form, join, or assist any labor organization, or to refrain from any such activity and to engage in collective bargaining with respect to conditions of employment through representatives chosen by employees.

Executive orders.EO 14251 (90 Fed. Reg. 14553, March 27, 2025) terminated the collective bargaining rights of employees in ten Cabinet-level departments and seven independent agencies whose “primary function” is ostensibly national security, the complaint states, “allegedly because the [Statute] ‘cannot be applied to these agencies and agency subdivisions in a manner consistent with national security requirements and considerations.’”

On August 28, 2025, President Trump issued another EO regarding exclusions from the Federal Labor-Management Relations Program. The new order, titled “Further Exclusions from the Federal Labor-Management Relations Program,” adds to the list of exclusions included, which is currently undergoing several court challenges. The EO’s fact sheet claims, as to the Office of the Commissioner of Patents, PTO, which was included in the August 28 EO, that “The Invention Secrecy Act tasks the PTO with reviewing inventions made in the United States, assessing whether their release could harm national security, and if so, issuing secrecy orders that prevent public disclosure. Effectively performing this work is essential to ensuring U.S. inventions with military or other national security applications do not fall into enemy hands.”

Function misstated. However, the complaint contends that this “one function on which the President bases his exemption is misstated. And it would not be a “primary” function of the Patents Office, in any event.” The Patents Office, the complaint contends, “does not... assess whether the release of patent applications could harm national security. Under the Invention Security Act, 35 U.S.C. § 181, patent applications whose release might be detrimental to national security are referred to the Atomic Energy Commission, the Secretary of Defense, or other defense agencies that make the determination whether the publication or disclosure of the invention could harm national security.”

It adds: “The Patents Office does not, therefore, assess whether releasing certain patent applications could have national security implications. And even as to the initial screening, that is not a primary function of the Patents Office (or PTO, for that matter). The screening of the patent applications for referral to the defense agencies is an ancillary duty of roughly two dozen of the nearly 9,000 patent examiners at PTO.”

Finally, NTEU explains in the complaint: “NTEU has represented bargaining unit workers at the Patents Office since 1985. For four decades, the Patents Office has fallen within the Statute’s coverage and had a collective-bargaining agreement with NTEU without any adverse effect on national security interests.”

Other challenges. Another lawsuit, also covered in today’s Labor & Employment Law Daily, was filed by the Patent Office Professional Association (PTOPA) and others to challenge the Trump administration’s actions.

This lawsuit was filed in federal court in the District of Columbia; the case is No. 1:25-cv-2990.

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