Labor & Employment Law Daily Wrap Up, NAA CORNER—Federal sector arbitration under Executive Order 14251, (Oct 15, 2025)

By Walt De Treux, National Academy of Arbitrators Chair, Committee on Professional Responsibility and Grievances

Repudiation of a collective bargaining agreement is not a new legal strategy, and it isn’t limited to the current EO.

On March 27, 2025, U.S. President Donald J. Trump signed Executive Order 14251, Exclusions from Federal Labor-Management Relations Programs. The EO effectively terminated collective bargaining agreements with several federal sector unions by exempting certain federal agencies from collective bargaining requirements under the Federal Service Labor-Management Relations Statute.

The affected union promptly contested the validity of the EO by commencing a lawsuit against the federal government. American Federation of Government Employees, AFL-CIO, et al. v. Donald J. Trump, et al., No. 25-cv-03070 (N.D. California). On June 24, 2025, the Court granted Plaintiffs’ request for a preliminary injunction blocking implementation of the EO. Upon the government’s appeal, the U.S. Ninth Circuit Court of Appeals stayed the District Court’s grant of the preliminary injunction. American Federation of Government Employees, AFL-CIO, et al. v. Donald J. Trump, et al., No. 25-4014 (9th Cir., August 1, 2025).

Soon after the stay order, some federal agencies terminated their collective bargaining agreements with federal sector unions. At the time of termination, agencies and unions had outstanding grievances pending arbitration and ongoing arbitrations in which hearings had been held but awards had not yet issued.

The response of the agencies to the pending and ongoing arbitrations has been inconsistent. Some agencies continue to schedule and hold hearings, file briefs, and await a decision. Many agencies notified assigned arbitrators that they would not participate further in scheduling hearings and demanded that all work on any ongoing arbitration cease. The agencies also notified the arbitrators that they would not authorize payment for any further work on the cases.

The National Academy of Arbitrators’ Committee on Professional Responsibility and Grievances (CPRG) enforces the Code of Professional Responsibility for Labor Arbitrators. In the aftermath of the EO, the Committee fielded inquiries from members on how they should respond, consistent with the Code, to disputes between agencies and unions regarding the status of their collective bargaining relationships. One of the more frequent questions concerns the arbitrator’s role when an Agency refuses to participate in a hearing or continue litigating a grievance filed before the EO became effective. In accordance with the Code, each arbitrator must always make their own decision based on the facts and circumstances of the case before them. Two recent decisions, however, offer insight into arbitral thought on the continuing controversy.

Arbitrator (and NAA President) Joshua Javits issued an Award involving a grievance filed February 14, 2025 (prior to the EO). The parties initially agreed to prepare written submissions in lieu of an arbitration hearing and to file briefs and reply briefs by August 5, 2025. Within a week of the 9th Circuit’s Stay Order, the Agency terminated the collective bargaining agreement. The Agency notified Arbitrator Javits that he no longer had jurisdiction over the grievance. It notified the Union that it would not participate in any further proceedings related to the grievance.

In his Award, Arbitrator Javits stated that he “is satisfied that any grievance properly and timely filed during the life of the [CBA] is and continues to be fully arbitrable.” He found that the termination of the CBA does not have “any bearing on the underlying grievance or the Arbitrator’s jurisdiction over the grievance.” He added, “Once the parties had jointly agreed to grant jurisdiction to the Arbitrator in accordance with established grievance resolution procedures contained in their contract, the Arbitrator retained such jurisdiction until such time as the grievances resolved or until both parties jointly agree to withdraw the grievance.” He stated that the EO, if lawful, has “no retroactive effect on already outstanding grievance[s].”

Arbitrator Edwin Benn faced a similar issue in a case pending hearing when the federal agency refused to participate in the scheduled hearing based on its termination of the collective bargaining agreement. Arbitrator Benn observed, “Given the Ninth Circuit’s Stay Order, I cannot at this time proceed with the…hearing.” He postponed the hearing, but he did not relinquish jurisdiction. Rather, he found, “Jurisdiction in this matter shall be retained and the case will be held in abeyance pending resolution of the ongoing litigation over the validity of the EO and/or the injunction.”

Anecdotally, some members have reported that certain agencies participated in a hearing after an arbitrator refused to postpone the hearing. Other agencies have declined further participation. Some arbitrators have scheduled ex parte hearings. The Code offers guidance on ex partehearings:

C. Ex Parte Hearings

In determining whether to conduct an ex parte hearing, an arbitrator must consider relevant legal, contractual, and other pertinent circumstances.

An arbitrator must be certain, before proceeding ex parte, that the party refusing or failing to attend the hearings has been given adequate notice of the time, place, and purposes of the hearing.

The ongoing litigation and uncertain validity of EO 14251 continues to present arbitrators with questions on how to proceed with pending and ongoing arbitrations. If the Court upholds the validity of the EO but does not address the status of grievances filed prior to the issuance of the EO and the termination of collective bargaining agreements, those disputes will continue to be decided by arbitrators and will surely result in further litigation.

Repudiation of a collective bargaining agreement is not a new legal strategy, and it isn’t limited to the current EO. The CPRG will be closely monitoring federal litigation on this issue, since it is a matter of concern to arbitrators in the federal and private sectors. Depending on the outcome of the litigation, labor arbitrators may have to continue to consider all pertinent circumstances, including the relevant legal and contractual factors.

About the author: Walt De Treux has been a labor and employment arbitrator and mediator since 1999 and has worked in the labor management field since 1982. He has an extensive labor and employment arbitration and mediation practice in a wide range of industries and issues.

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