Federal Workers Look to Weakened Labor Agencies for Trump Shield

The federal agencies responsible for protecting the rights of government workers are only now just recovering from years of inaction, just as the incoming Trump administration is poised to renew its attack on the US civil service.

Federal workers have already been targeted by Trump advisers Elon Musk and Vivek Ramaswamy, who are leading an effort known as the “Department of Government Efficiency.” They’ve called for massive cuts to the administrative state to reduce what they view as a bloated bureaucracy, and mandatory in-person office attendance—issues that will surely generate heated disputes between the government and its employees.

But the Federal Labor Relations Authority and the Merit Systems Protection Board—two agencies tasked with refereeing those clashes—have operated in weakened states since the first Trump era, with gaps in key leadership positions persisting well into the Biden years.

Labor unions and plaintiff’s attorneys say those vacancies kneecapped the agencies’ ability to effectively manage and regulate federal labor relations, a disadvantage that will likely worsen when an administration hostile to what it deems the “Deep State” is back in place. It also could allow President-elect Donald Trump to alter policy at-will.

“Unions are going to be really important for federal employees in the upcoming administration but Trump’s government is going to do as much as it can to throttle their influence and it’s going to be really rough,” said Michelle Bercovici, an Alden Law Group PLLC attorney.

Worker classification, teleworking, and official time policies will likely be the biggest battles facing federal workers and unions in the coming years, she said.

Thomas Firey, senior fellow at the Cato Institute, said that while he wants to see a government with fewer employees, Trump’s administration should be careful not to “throw bombs” and destabilize federal agencies.

“It’ll be interesting to see if a Trump administration does try to wage a war with bureaucracy and if it means that he gets what he wants or he gets just a whole lot of chaos,” he said. “I suspect all it will provide is chaos.”

Workforce Shakeups

The FLRA mirrors the private-sector National Labor Relations Board with its general counsel’s office, which investigates unfair labor practices outlined by the Federal Service Labor-Management Relations Statute, administrative law judges that hear cases and issue initial rulings, and a three-member board to make final determinations.

The Senate confirmed Anne Wagner as the third member of the FLRA earlier this year, breaking the ideological deadlock between Democratic Chair Susan Grundmann and the Republican member Colleen Kiko and allowing the authority to address controversial cases for the first time since January 2023. President Joe Biden’s first nominee for the post was rejected by the Senate, and the second pick withdrew his nomination.

Biden has attempted to secure Senate confirmation for union attorney Suzanne Summerlin as general counsel since May 2023. The position has been vacant since 2017, resulting in 270 unfair labor practice cases being held in abeyance, FLRA spokesperson Eric Prag said.

Rushab Sanghvi, general counsel for the American Federation of Government Employees, said while Summerlin was never confirmed, the union believed the Biden administration “wanted to address federal-sector issues in a fair manner.”

“We hope the incoming administration will continue to respect workers’ rights and meet their legal obligations,” he said. “We have concerns based on the previous Trump administration’s nominees for the FLRA and comments coming from Musk and Ramaswamy which suggest that the incoming administration wants to attack federal employees.”

Project 2025, the brainchild of conservative think tank the Heritage Foundation, calls for the “limitation” of unions and a restoration of Schedule F, a 2020 move by Trump to strip legal protections from certain civil servants. Trump during his 2024 campaign distanced himself from the plan, whose contributors have ties to the president-elect’s former administration.

It also called for the revival of several Trump executive orders that directed agencies to renegotiate collective bargaining agreements, limit employees from using official paid time for union work, and limit grievances.

Brian Hughes, a spokesman for Trump’s transition team, said the administration will “have a place for workers who are committed to defending the rights of the American people, putting America first, and ensuring the best use of working men and women’s tax dollars.”

Deadlocks, Workarounds

The MSPB hears worker appeals of negative employment decisions such as demotions and terminations.

That three-member board lacked a quorum between 2017 and 2022, rendering it practically useless and building a queue of over 3,700 appeals. Since the board regained its quorum in March 2022, it’s issued 4,508 decisions and says it will eliminate its backlog by the end of 2024.

Jim Eisenmann, another labor-side attorney with Alden Law Group, said the MSPB could face another period of inaction after Vice Chair Raymond Limon’s seat expires in February 2025, and an ideological deadlock follows.

“In the times before Trump, when a new president came in and looked at vacancies, the MSPB and FLRA were not priorities,” Eisenmann said. “It takes months even to get a nominee.”

MSPB spokesperson William Spencer said the board would be “stable for the foreseeable future” after it altered its regulations to give members more flexibility when it’s without a quorum.

To compensate for the vacancies at both agencies, unions and workers have chosen alternative routes to get cases resolved, such as taking disputes through arbitration or the courts, Sanghvi said.

Unions can file grievances over unfair labor practices or labor contract violations. Arbitrators’ decisions can then be appealed directly to the FLRA without having to go through a general counsel. According to Sanghvi, long-term suspensions or terminations can be appealed in federal court.

“It’s a shame that we’ve lived without a general counsel for some time now but we continue to get positive decisions through the grievance and arbitration process,” he said. “And we know what’s coming. Every time there’s a new administration there’s a new FLRA so that’s what we’re preparing for.”