President Trump has issued an executive order that would eliminate collective bargaining for many federal employees. In one sense, it’s a start. In another, it goes too far.
Federal workers should not be allowed to collectively bargain, and for the first three decades of modern labor relations law, they weren’t allowed to. Even Franklin Roosevelt, the man responsible for the National Labor Relations Act of 1935 and who sought to supercharge private sector unions, and Samuel Gompers, the founder of the American Federation of Labor, understood that collective bargaining had no place in federal employment.
The reason is that the employer of federal workers is, ultimately, the people, from whom all government power derives under the Constitution. Unions are private, unelected organizations nested within the government with power to negotiate against the people over what government policy should be. They don’t fit in our constitutional order.
It wasn’t until 1962 that John F. Kennedy signed an executive order permitting limited collective bargaining in the federal workforce. Was Kennedy’s order in response to some kind of awful scandal or systematic mistreatment of federal workers? Not at all. As Philip Howard records in his book Not Accountable, the expansion of collective bargaining to federal workers was an ideological decision to empower progressives.
In 1978, Congress passed and Jimmy Carter signed the Civil Service Reform Act (CSRA) that entrenched federal collective bargaining in law. In the same way that the U.S. had education before Jimmy Carter created the Department of Education, it also had a professional civil service before Jimmy Carter gave federal workers collective bargaining, and it can have one still if collective bargaining is removed.
Trump’s executive order uses the CSRA to curtail collective bargaining. The law gives the president power to limit collective bargaining in portions of the government that work on national security. Trump’s order expands the definition of national security–related agencies for the purposes of the CSRA to include Defense, State, Veterans Affairs, and Energy, along with large parts of Homeland Security, Treasury, Health and Human Services, and others.
While Trump should use the CSRA’s power on areas that are truly related to national security, such as Defense and Homeland Security, the order follows a pattern of Trump’s actions by stretching the definition of “national security” beyond any reasonable bounds. The EPA is included, for example, and there’s simply no way that’s a national security agency.
Then, there’s the cronyism. The Border Patrol union endorsed Trump in the last election, and he has appointed the union’s former president, Brandon Judd, as ambassador to Chile. U.S. Customs and Border Protection, the Border Patrol’s parent agency, is not included in the order. Border security clearly is national security, so leaving the Border Patrol union untouched is not justifiable.
The publication Government Executive estimates that the order covers about two-thirds of the federal workforce and about three-quarters of workers who are currently covered by collective bargaining agreements. It would be great if that many federal workers were truly involved in national security, because that would mean the national government is focused on its primary purpose, but that’s obviously not true of today’s sprawling bureaucracy.
The right answer here, as in so many other areas, is to change the law. Congress should prohibit collective bargaining by federal workers, which would require amending or repealing parts of the CSRA.
Short of a full prohibition, Congress could also look to copy smart reforms from the states, as Judge Glock and Renu Mukherjee have written in a recent Manhattan Institute report. For example, many states have at-will employment for most bureaucrats now. Many Republican-led states have prohibited automatic dues deduction on government workers’ paychecks, which is really just following the Supreme Court’s 2018 Janus v. AFSCME decision mandating that any payment to public sector unions be voluntary. Most notably in Wisconsin and Florida, state-level Republicans have required annual recertification elections for unions. Currently, federal unions only need to win one election to be the bargaining agent forever.
Congress could also ban “union time,” the practice whereby federal workers are granted paid leave to perform union duties. Trump would possibly have more legitimate authority to act through executive orders on issues such as union time and automatic dues deduction. During his first administration, he issued an order limiting union time.
It’s not often that we call for returning to the good sense of Franklin Roosevelt, but he was absolutely correct when he wrote to a union leader in 1937 that collective bargaining “cannot be transplanted into the public service.” It nonetheless has been, in abuse of the Constitution, and it must be removed. To achieve this desirable result, Trump should use executive power where he can, but the solution must ultimately come from Congress.