Labor & Employment Law Daily Wrap Up, NAA CORNER—NAA files amicus brief in AFGE v. Trump case, (Sep 26, 2025)

By Lise Gelernter, Chair, National Academy of Arbitrators Amicus Brief Advisory Committee

The EO effectively stripped collective bargaining rights from two-thirds of the federal workforce, affecting hundreds of thousands of federal workers.

Executive Order 14251 and the litigation process

The National Academy of Arbitrators (NAA) filed an amicus brief on August 29, 2025, in support of the American Federation of Government Employees (AFGE) and five other federal employee unions[1] who are plaintiffs-appellees in the AFGE v. Trump case, which is pending in the federal Ninth Circuit Court of Appeals. NAA members Matthew Finkin and Barry Winograd wrote the brief.

AFGE and the five union co-plaintiffs challenged Executive Order 14251, 90 Fed. Reg. 14553 (4/3/25) (EO), in which President Trump exempted all or part of 19 federal agencies from the Federal Service Labor-Management Relations Statute (FSLMRS), 5 U.S.C. §§ 7101 et seq. The FSLMRS, adopted in 1978, grants collective bargaining rights to most federal workers, including the right to use a grievance/arbitration process to resolve disputes arising under collective bargaining agreements. 5 U.S.C. §§ 7101, 7102, 7121. The EO effectively stripped collective bargaining rights from two-thirds of the federal workforce, affecting hundreds of thousands of federal workers. Amer. Foreign Serv. Ass’n v. Trump, 783 F.Supp.3d 248, 254 (D.D.C. 2025); Complaint, AFGE v. Trump (N.D. Ca. 4/3/25), ¶¶ 189- 194.

In the EO, the President claimed he had the authority to exempt the agencies he listed because Section 7103(b)(1) of the FSLMRS allows the president to remove agencies from statutory coverage under the following conditions:

1. the agency or subdivision has as a primary function intelligence, counterintelligence, investigative, or national security work, and

2. the provisions of this chapter cannot be applied to that agency or subdivision in a manner consistent with national security requirements and considerations.

5 U.S.C. § 7103(b)(1).

The plaintiff unions attacked the EO on both statutory and constitutional grounds. They argued that most if not all of the agencies the EO exempted did not fit into the limited statutory exemption for agencies with a primary function of intelligence, counterintelligence, investigative or national security work and that they could function consistently with national security considerations if the FSLMRS were applicable to their employees. The unions also argued that the EO infringed the First Amendment rights of the unions and their members to speak out about and file lawsuits challenging the President’s policies and to use the grievance and arbitration processes to protest what they alleged were contractual violations. Stripping federal workers of their collective bargaining rights also infringed on their Fifth Amendment due process and property interests in the rights guaranteed by the collective bargaining agreements to which the federal government and the unions agreed, the unions argued. The plaintiffs also claimed that the EO violated the Fifth Amendment’s guarantee of Equal Protection under the law. Complaint, AFGE v. Trump (N.D. Ca. 4/3/25) (Docket No. 4:25-cv-03070).

District Court Judge James Donato granted the unions’ request for an injunction on June 24, 2025, when he found that the unions would likely have success on the merits of their First Amendment claims and met the other standards for the issuance of a preliminary junction. The injunction prohibited the affected agencies from implementing the EO’s exemption of most agencies pending the final outcome of the case. Order, AFGE v. Trump 2025 WL 1755442 (N.D. Ca. 6/24/25). The President and his co-defendants appealed the grant of the injunction and also sought to stay the injunction pending its appeal, which the Ninth Circuit granted on August 1, 2025. Order, AFGE v. Trump, 148 F.4th 648 (9th Cir. 8/1/25). This meant that the President and his agency heads could implement the EO.

On August 22, 2025, the unions filed a brief in opposition to the appeal in which they essentially argued the merits of their case in order to show that the District Judge had ruled correctly when he granted the injunction. The NAA filed an amicus brief on August 29, 2025, that focused on the EO’s unlawful interference with the collective bargaining rights and processes that Congress had established when it passed the FSLMRS in 1978.

The NAA’s brief

In its brief, the NAA explained that when Congress passed the FSLMRS, it acknowledged specifically that Congress had found that “labor organizations and collective bargaining in the civil service are in the public interest.” 5 U.S.C. § 7101(a)(2). Congress also recognized that the federal government had “special requirements and needs,” which the FSLMRS addressed. 5 U.S.C. §7101(b). Safeguarding national security was one of those “special requirements and needs” that the statute addressed specifically by excluding from the statute four agencies that provide direct national security protections: the Federal Bureau of Investigation, the Central Intelligence Agency, the National Security Agency, and the Secret Service. 5 U.S.C. §7103(a)(3).[2]

Pursuant to Section 7103(b)(1) of the FSLMRS, Congress also gave the President the authority to exclude additional agencies or agency divisions from the statute only if the agency or division performs primarily “intelligence, counterintelligence, investigative, or national security work,” and application of the FSLMRS to that agency or division would interfere with “national security requirements.” 5 U.S.C. § 7103(b)(1).

Previous Presidents have used this authority in a circumscribed manner by exempting a limited number of subdivisions of agencies that all had national security or intelligence functions. AFGE v. Trump, 2025 WL 1755442 *3 (N.D. Ca. 2025). No President ever used this limited authority to attempt to exempt an entire cabinet agency, much less the multiple entire cabinet departments that EO 14251 exempts, including the entire Department of State, the Department of Justice, the Department of Veterans Affairs, the Environmental Protection Agency, the General Services Administration and the Federal Communications Commission. Id.; EO 14251.

As a further protection against involving national security employees in the collective bargaining process, the FSLMRS also does not allow bargaining units to include any “employee engaged in intelligence, counterintelligence, investigative, or security work which directly affects national security.” 5 U.S.C. § 7112(b)(6). The Federal Labor Relations Authority (FLRA), which has the final word on certifying the composition of appropriate federal employee bargaining units to be represented by unions in collective bargaining, has decades of experience applying the national security exclusion. It has defined “national security” and “security work” as covering “the security of the [g]overnment in domestic and foreign affairs, against or from espionage, sabotage, subversion, foreign aggression, and any other illegal acts which adversely affect the national defense,” including protecting the nation’s critical infrastructure from terrorist attacks. In other unit determination decisions, the FLRA has considered “intelligence” and “counter intelligence work” to involve matters such as espionage, concealment, deception and sabotage prevention. Dep't of Energy, Oak Ridge Operations, Oak Ridge, Tennessee Activity & Nat'l Ass'n of Gov't Emps., Loc. R5-181 Petitioner & Off. & Pro. Emps. Int'l Union, AFL-CIO Intervenor, 4 F.L.R.A. 644, 654-56 (1980), citing Cole v. Young, 351 U.S.536 (1956); Soc. Sec. Admin. Baltimore, Maryland & Am. Fed'n of Gov't Emps., 59 F.L.R.A. 137 (2003); 35 United States Nuclear Regul. Comm'n & Nat'l Treasury Emps. Union, 66 F.L.R.A. 311 (2011).

EO 14251 would exclude thousands of employees from the protections of the FSLMRS whom the FLRA has determined are able to be members of a bargaining unit, implicitly or explicitly finding that they do not serve in national security or intelligence functions. The NAA’s brief provides the example of the Veterans Administration (VA) as an illustration of the EO’s excessive reach well beyond federal employees who have anything to do with national security or intelligence work. The VA employs more than 480,000 people and is the largest of the cabinet-level departments that the EO affects. Most VA employees work in the VA’s very extensive network of hospitals, clinics and nursing homes providing healthcare services. Desilver, What the data says about federal workers, Pew Research Center, January 7, 2025 at: https://www.pewresearch.org/short-reads/2025/01/07/what-the-data-says-about-federal-workers/#which-federal-departments-and-agencies-employ-the-most-people; Hersey, VA ends contracts for most of Its unionized employees, Stars and Stripes, August 7, 2025 at: https://www.stripes.com/veterans /2025-08-06/va-employees-unions-veterans-8686050.html. The doctors, nurses, nurses’ aides, therapists, janitors, clerical office staff, data entry clerks, timekeepers and maintenance and trades personnel that the EO purports to exempt are not performing national security or intelligence work.

The EO’s overreach also rebuts the “presumption of regularity” that courts usually adopt for presidential actions. By enveloping so many employees who have no connection to national security or intelligence, the EO’s reliance on an exception for agencies or subdivisions that have “as a primary function intelligence, counterintelligence, investigative, or national security work” is illusory.

In addition to not meeting the first statutory criterion to exempt agencies from the FSLMRS, the EO also fails to meet the second criterion: “the provisions of this chapter cannot be applied to that agency or subdivision in a manner consistent with national security requirements and considerations.” 5 U.S.C. § 7103(b)(1). The Fact Sheet that accompanied the EO stated that collective bargaining and grievance arbitration somehow “obstructs” or “interferes with” national security because unions had used that dispute resolution mechanism to challenge the President’s policies. Fact Sheet: President Donald J. Trump Exempts Agencies with National Security Missions from Federal Collective Bargaining Requirements, March 27, 2025 (Fact Sheet), at: https://www.whitehouse.gov/fact-sheets/2025/03/fact-sheet-president-donald-j-trump-exempts-agencies-with-national-security-missions-from-federal-collective-bargaining-requirements/. However, the statute itself does not permit collective bargaining over matters related to a wide range of management rights, including national security issues. 5 U.S.C. §7106. The NAA’s research into and experience with the successful decades-long experience with grievance arbitration in the federal sector without any interference with national security also disproves the administration’s claim that it meets the statutory requirements for eliminating collective bargaining and arbitration for two-thirds of the federal workforce. Further, the FSLMRS provides another national security protection: the FLRA has the power to vacate any arbitration awards that are not consistent with any law, rule or regulation, including those relating to national security. 5 U.S.C. §7122(a)(1).

Section 7103(b)(1) allows the exemption of federal agencies or subdivisions from the FSLRMS only if they meet two criteria: the agency or subdivision has a primary function of national security or intelligence and applying collective bargaining to that agency or subdivision would be inconsistent with national security. A failure to meet just one criterion dooms any attempt to exclude the agency from the statute. In this case, the EO fails to meet both required statutory criteria, rendering it invalid.

About the author. Lise Gelernter is an NAA member. She taught at the University at Buffalo School of Law for 18 years. She is a co-author of the textbook, ADR in the Workplace (4th ed. West 2020) and has published articles on arbitration issues.

Footnotes:

1 The other unions are: American Federation of State County and Municipal Employees, National Nurses Organizing Committee/National Nurses United, Service Employees International Union, National Association of Government Employees, and the National Federation of Government Employees.

2 The statute excludes four other agencies that have unique government oversight or labor relations functions or administrative structures and functions: the Government Accountability Office, the Tennessee Valley Authority, the Federal Labor Relations Authority and the Federal Service Impasse Panel. 5 U.S.C. §7103(a)(3).

Companies: National Academy of Arbitrators

MainStory: Arbitration Bargaining UnionsMembers FedTracker LaborEmployment LitigationNewsTrends