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How to Protect Federal Agencies through Collaborative Bargaining


Asher Morse is a 3L at Stanford Law School.

In 2019, the Trump administration announced plans to move 84% of Bureau of Land Management staff at the agency’s D.C. headquarters to Grand Junction, Colorado. The Biden administration reversed the proposal in 2021, but not before 287 of the 328 prospectively impacted employees had retired or resigned. Such attrition was the central goal of the relocation. When the Trump administration announced similar plans to uproot several hundred USDA employees to the Kansas City Area and more than half of the workforce quit in response, Chief of Staff Mick Mulvaney called it “a wonderful way to sort of streamline government.”

The BLM and USDA debacles were just two of the many instances in which the Trump administration pursued a strategy of what Jody Freeman and Sharon Jacobs have called “structural deregulation,” the undermining of agencies’ ability to execute their statutory mandates by means other than the repeal of agency rules or policies. As they explain, structural deregulation includes “such practices as leaving agencies understaffed and without permanent leadership; marginalizing agency expertise; reallocating agency resources; occupying an agency with busywork; and damaging an agency’s reputation.” Perhaps the most prominent of these initiatives during Trump’s tenure came in the administration’s final months, when officials attempted to strip civil service protections from broad swathes of the federal workforce by creating a new employment classification category, Schedule F.

Challenging structural deregulation in the courts can prove difficult. Under federal law, before individual federal employees can appeal a decision to the U.S. Court of Appeals for the Federal Circuit, they must typically channel complaints through the Merit Systems Protection Board. But that agency lacked a quorum for the entire Trump presidency, creating a tremendous backlog of complaints—and no feasible means of judicial review as a result. Meanwhile, outside organizations typically struggle to establish standing to challenge actions that, at least as a first order matter, most directly impact employees.

There is, however, one defense mechanism against future structural assaults that is lying in plain sight of agency management: federal sector unions. Federal collective bargaining agreements are meaningfully enforceable — by third-party arbitrators, whose decisions are appealable to the Federal Labor Relations Authority (“FLRA”) — and forthcoming scholarship by Nicholas Handler demonstrates the profound extent to which litigation to enforce these contractual rights can shape federal policy. Federal collective bargaining agreements thus offer the chance to proactively build in protections that will be vital if dangerously anti-administrative candidates such as Trump or DeSantis take office. But that’s only true if agency leadership is willing to shed knee-jerk anti-union attitudes.

Collaboration at the Bargaining Table

Federal sector unions already appreciate the defensive value of such agreements. For example, the union representing roughly half of EPA employees is seeking a “scientific integrity” provision in their next contract, guaranteeing that scientists have a say in drafting EPA positions and decisions. (A direct reaction to the attacks on science that occurred at the agency during the Trump administration.) They are also seeking new provisions on diversity, inclusion, equity, and accessibility. Despite these laudable goals, the union’s executive vice president, Joyce Howell, characterized EPA management’s counterproposal to the union’s first offer as “kind of minimal,” further stating that “[t]he approach of the agency seems to be to do what the law requires and nothing more. They’re even regressive in some areas–certainly conservative.”

This adversarial posture, while unsurprising given that agency management are ultimately employers negotiating with employees, is not inevitable. Under the relevant statute, management can be conciliatory and collaborative in negotiations—and indeed they should be, if leadership hopes to protect agencies from structural deregulation. Such an approach would be precisely what was envisioned by the Biden administration’s stated goals of protecting the civil service and “ensuring that the federal government is a model employer with respect to encouraging worker organizing and collective bargaining among its workforce.”

Even the Trump administration recognized the power of this collaborative approach where it concerned unions at some of its most ideologically-aligned agencies. In 2021, then-acting Deputy Secretary of the Department of Homeland Security Ken Cuccinelli attempted (ultimately without success) to effect unprecedented union-empowering contracts between DHS and ICE’s union. In 2019, Trump’s DHS actually managed to ink a similar contract with the National Border Patrol Council.

The ICE and CBP contracts gave these agencies’ unions incredible latitude to influence agency policy, as well as stupendously generous grants of paid time off from assigned government duties to represent a union or its bargaining unit employees. Under the administration’s supposedly standard formula, the National Border Patrol Council would have been entitled to approximately 18,000 hours of such time over the first year of the contract. Instead, its 2019 contract granted it 153,920 hours—over eight times that amount. The nixed ICE agreement would have been similarly atypical.

While certain aspects of these contracts were of questionable legality, the grants of official time at least were within the bounds laid out by the Federal Service Labor-Management Relations Statute. The statute stipulates which issues agencies must, may, or cannot bargain over. For instance, agencies must negotiate over subject matter affecting “conditions of employment,” defined as “personnel policies, practices, and matters…affecting working conditions.” In one negotiability dispute, for example, the FLRA held that the IRS was required to bargain over how a set of new Commodity Tax Shelter working groups within its Examination Division were to be staffed (i.e., through what mix of volunteering and reassignment the working groups would be staffed, and whether any reassignments would be made according to seniority).

Agencies can, at their election, bargain over a category of permissive subject matter, statutorily encompassing “the numbers, types, and grades of employees or positions assigned to any organizational subdivision, work project, or tour of duty, or on the technology, methods, and means of performing work.” These terms have been interpreted capaciously. For example, the FLRA has held that a USDA proposal to change union employees’ schedules to include a 30-minute unpaid lunch period was negotiable at the agency’s election. It interpreted the term “tour of duty” to mean the hours and days constituting employees’ administrative workweeks. Because the proposal would affect the number of employees assigned to a particular kind of “tour of duty” (i.e., the kind with a 30-minute unpaid lunch break in it), it fell into the statute’s permissive category.

It is true that, under the statute, collective bargaining cannot intrude on the exercise of various management rights, including agency leadership’s prerogatives to “determine the mission, budget, [and] organization” of an agency, and to “hire, assign, direct, layoff, and retain employees in the agency.” But the prohibition on such bargaining subjects comes with certain exceptions. 

Agencies are permitted to bargain over “procedures which management officials of the agency will observe in exercising any authority under [the section],” even if those procedures impact how management exercises its protected rights. Additionally, even substantive provisions affecting protected management rights may be bargained over, if they also fall into the permissive category. In the 30-minute unpaid lunch break case, the FLRA explained that the proposal fell into both the statutorily prohibited (it affected management’s statutory right to “assign work”) and permissive (it was to have affected the number of employees within an agency assigned to a particular “tour of duty”) categories of bargaining—and thus determined that the proposal was negotiable at the agency’s election.

Given these permissions and constraints, consider how an agency might defend against something like the attempted BLM relocation. Although determinations as to “the geographic locations in which an agency will provide services or otherwise conduct its operations” were held by the FLRA to affect management’s right to “determine an agency’s organization,” an agency and its employee union could likely use the “procedure” carveout to agree on a set of consultation processes that would ensure employees have meaningful input into any relocation decision. Such a procedural protection would likely deter attempts to browbeat federal employees into retirement, as well as mute the impact of any such attempts.

In sum, agency leaders concerned about how to defend against the damaging anti-administrative agendas of candidates such as Trump and DeSantis who may take office in 2025 should seize the opportunities available to them now through collective bargaining to protect their workforces and their statutory functions.