Talks Advance to Form First Attorney Union at Justice Department

Environmental lawyers are attempting to form the first known union of litigating attorneys in Justice Department history, a campaign sparked by return-to-office mandates and fears of political intervention, employee and labor organizers said.

Environment and Natural Resources Division trial attorneys have been collecting signatures of support after reaching out to the National Treasury Employees Union last year. They’re well on their way to meet a goal of gathering forms from at least half of the roughly 350 eligible lawyers and holding a representation election by October, said a member of the organizing committee.

Lawyers at other government offices have long been organized in collective bargaining units in which outside public-sector unions negotiate over their workplace conditions. The thousands of DOJ lawyers who represent those agencies in court, however, have never been union-represented.

“As we continually strive to carry out the Division’s mission, an ENRD attorney union will help ensure that our voices are heard on important issues like return-to-office policies and the uncertain future of civil service protections,” the division’s attorney union steering committee said in a statement.

A noteworthy challenge is that the lawyers are embarking on a bid to fend off potential partisan intervention while trying to avoid coming across as political in the process. Their litigation often generates opposition on the right, particularly among proponents of deregulation.

The division, which now defends the Biden administration’s multiple environmental protection rules in court, was led in Donald Trump’s first term by Jeffrey Clark.

Clark was said to have clashed with the agency’s career attorneys before he became better known for facing a pending criminal indictment and disbarment proceeding for allegedly advising Trump to overthrow the 2020 election.

Schedule F

Regardless of whether Clark figures into a potential second term for the presumptive GOP nominee, Trump has promised to revive his 2020 “Schedule F” directive—quickly revoked by Biden—that would’ve made it easier to fire federal employees in policy roles.

The National Treasury Employees Union, which represents around 150,000 employees at 35 federal agencies, has set up an ENRD campaign website that promotes how it can try blocking Schedule F and broader attempts to politicize the division in a change of administrations, yet without overtly naming Trump.

“For us, it’s not about politics and the risk is our jobs becoming politicized,” said the ENRD organizing committee member, who spoke on condition of anonymity to share internal department discussions. “I think that’s probably a factor in some folks’ head, but across the board having union protections is a vehicle for us to create greater consistency and stability.”

Still, one former senior career official at the division said his conversations with past colleagues reflect clear alarm about Trump’s potential return.

“People are very, very, very nervous. I don’t have a conversation with anybody in ENRD where the prospect of a second Trump term isn’t raised,” said Andy Mergen, a Harvard clinical law professor and former ENRD appellate chief. “It’s weighing very heavily on people’s minds.”

Direct Voice

It was actually a policy change from the current administration that kicked off the process for attorney organizers.

ENRD lawyers, who enforce clean air and water statutes and defend environmental protection regulations in court, among other tasks, began union discussions directly in response to the department restricting telework flexibility last year, said the organizing committee member.

The fall announcement from Deputy Attorney General Lisa Monaco directed employees department-wide to begin working in the office six days per two-week pay period, effective January 2024. ENRD employees previously had to appear in person two days every two weeks.

Environment division lawyers felt their concerns about reduced productivity and disruptions to family-work balance had fallen on deaf ears among senior DOJ officials above their division managers, the ENRD lawyer said.

“The message we took from this was that we needed to readjust the structural imbalance of power by giving employees a direct voice that decisionmakers were required to listen to,” the lawyer added.

Monaco’s Sept. 26 note stipulated that DOJ employees covered by collective bargaining agreements, such as support staff, agents, and immigration judges, would need to negotiate separate return-to-office terms. This exemption only reinforced to the ENRD attorneys that they should have another avenue to talk to DOJ, the organizer said.

The Justice Department didn’t provide a comment.

The employee organizer said ENRD management has been complying with its legal obligation to remain neutral to their campaign, including by granting them access to department space for tabling and to hold happy hours.

One Republican former senior ENRD official, who was granted anonymity to speak candidly, said a union would be a “big mistake.” Contrary to other federal agencies with unionized attorneys, such as those processing permits or issuing regulations, the environment division’s litigators hold a special duty to represent US interests in court, he said.

“Their obligations must be impartially and zealously pursued on behalf of the United States, and not on behalf of any personal interest or perspective they may have,” the former official said. “It’s also easy to assume that a unionized ENRD, which is unprecedented for DOJ litigators, would be wildly unpopular with Congress, and could subject the division and its funding to more scrutiny.”

AI Concerns

Although federal employee unions are legally barred from negotiating on pay and benefits, they can bargain over scheduling issues, like telework, that have become a major priority as some workplaces have been transitioning away from remote work.

Other ENRD employees have expressed interest in unionizing to ensure they have a say in DOJ protocols for attorneys using artificial intelligence to write briefs and other legal documents.

The organizer called this an “emerging issue” in which “we think we can play a constructive role with management in helping them understand how we can best leverage these new technologies while mitigating risk.”

NTEU, which also represents attorneys at the Environmental Protection Agency (EPA), could file for an election to be certified as the sole bargaining unit as soon as they submit signatures indicating support from at least 30% of the eligible workforce.

To improve their chances of prevailing in a secret ballot election, they’re waiting until they hit the 50% threshold to file a petition with the Federal Labor Relations Authority regional office, the organizer said.

Employees who’d signed cards could always change their minds in an election, but if a majority of voters select yes to the union, NTEU would then begin negotiating an initial labor contract with DOJ.

“We look forward to learning more about how these highly skilled employees can advocate for themselves by coming together and fighting for improvements in their workplace,” said NTEU National President Doreen Greenwald, in a statement.