Federal Workers Denied Arbitration as Trump Takes Aim at Unions

The Trump administration is denying federal workers a key tool used to resolve conflicts with management as it intensifies its drive to dismantle public sector unions.

An Environmental Protection Agency official told workers late last month that the government will no longer honor a pact to allow workers to settle certain complaints through a neutral third party, according to documents and interviews with people close to the process. Bob Coomber, a senior labor adviser at the EPA, wrote in an Aug. 22 email to staff that the agency would quit ongoing arbitration over changes to the return-to-office policy, saying the agency no longer has to participate after President Donald Trump’s March executive order to cancel labor contracts at nearly two dozen agencies.

The policy shift, which could affect a broad range of agencies that currently use arbitration as a way to resolve employee disputes, threatens to undermine a federal workforce already reeling from mass layoffs and funding cuts.

“It’s a challenging legal landscape ahead of us,” said Justin Chen, president of American Federation of Government Employees Council 238, which represents the EPA workers. “We’re the canaries in the coal mine.”

Republican and Democratic administrations have both relied on arbitration for decades as an alternative to costly court battles. The system allows both the government and workers to present their case to a neutral third party and agree to abide by that person’s decision.

An arbitrator’s decision can be appealed to the Federal Labor Relations Authority, a three-person panel that adjudicates federal labor disputes. But Trump fired FLRA Chair Susan Grundmann in February, leaving the board with just one Republican and one Democrat.

Proceedings Paused

Arbitrators who hear grievances by federal workers are now seeing agencies try to pause proceedings until a legal challenge against Trump’s March executive order is resolved, according to one arbitrator who spoke to Bloomberg Law on condition of anonymity. However, the Trump administration may have no choice but to arbitrate any grievances filed before the EPA contract was canceled Aug. 8, the arbitrator said.

It is up to arbitrators themselves to decide whether to move forward without both parties, the arbitrator said.

The arbitrator pointed to the 1977 Supreme Court decision in Nolde Bros. v. Bakery & Confectionery Workers Union Local 358, which found that arbitration clauses in a collective bargaining agreement can outlive the contract itself when a dispute is “arguably created” by the expired agreement.

Union-side attorneys say they will push to restore arbitration even as they juggle other lawsuits.

“They can make their argument that, ‘Oh well, we canceled this in the meantime,’” said David Borer, a union-side attorney for Gilbert Employment Law, P.C., who previously was general counsel for AFGE. “But our argument would be that ‘Sorry, this case is already ripe for decision and goes forward.’”

A spokeswoman for the Office of Personnel Management, the government’s chief human resources bureau, said in a statement that any union activity at any agency deemed to have a critical national security mission would be “contrary to law.” She pointed to a March memo directing agencies to withdraw from arbitration when a collective bargaining agreement is ended.

Any future legal challenge would likely center on the Civil Service Reform Act of 1978, which established binding arbitration for disputes not settled through routine grievance procedures.

AFGE said in a statement last week it was preparing an “immediate response” to Trump’s latest bargaining order “and will continue to fight relentlessly to protect the rights of our members, federal employees and their union.”

Congress “imbued civil servants with these rights, they’ve enjoyed these rights since the late 1970s, and now all of a sudden Trump is coming in and ripping up the playbook,” said Suzanne Summerlin, an attorney for the EPA workers.

Dissolving Union Powers

Unions have filed more than a dozen lawsuits against Trump’s cuts to and policy changes for the federal workforce.

The president claimed that certain federal unions have “declared war” on his agenda before issuing his executive order targeting those agreements. Just before the Labor Day holiday, he issued a second order dissolving labor agreements at NASA, the International Trade Commission, the National Weather Service, and several others.

Unions say that the administration’s refusal to engage in arbitration is illegal—and that the administration is obligated to continue arbitrating any grievances that happened before Trump canceled the EPA agreement.

The Trump administration, however, says it doesn’t need to continue any arbitration proceedings, citing the president’s broad national security exemption used to dissolve federal unions. Two appeals courts have allowed Trump to continue dismantling collective bargaining while a legal challenge moves forward.

“The Agency’s position is that any arbitrator selected would create no obligation on the agency,” Coomber wrote.

An EPA spokesperson declined to comment.