Lawsuit offers new details of VA’s anti-union EO implementation

The latest federal employee union lawsuit filed challenging President Trump’s executive orders aimed at stripping two-thirds of the federal workforce of their collective bargaining rights accuses the Veterans Affairs Department of violating the terms of Trump’s edicts, in addition to the First and Fifth amendment claims common in these cases.

The American Federation of Government Employees’ National VA Council filed its complaint Tuesday in the U.S. District Court for Rhode Island. Unlike most legal challenges thus far against the March and August executive orders, which cited a seldom-used provision of the 1978 Civil Service Reform Act to outlaw unions at most federal agencies on national security grounds, it focuses on the actions of VA Secretary Doug Collins in implementing—and selectively enforcing—the edicts, rather than just the president’s actions and their legality.

“Under the [Administrative Procedure Act] the termination [of AFGE’s union contract] was arbitrary and capricious, an abuse of discretion and contrary to law,” the suit states. “Both the termination and the related April 11 order [exempting other unions from the abolition] were issued without any rationale or justification. Secretary Collins had the authority to determine that [federal sector labor law] could be applied to certain ‘subdivisions’ of the VA consistent with national security concerns, but the secretary did not make any such determination. He instead arbitrarily terminated collective bargaining rights on a union-by-union basis, which is inconsistent [the law] and EO 14251.”

Collins’ decision to exempt roughly a half-dozen smaller unions from Trump’s edict, and his spokesman’s assertion that they retained their collective bargaining rights because they had filed “no or few grievances” against VA, show that the basis for whether a union was targeted for decertification under the executive orders was “political activity,” rather than national security, the union argued.

“The April 11 order purports to exempt from the EO’s scope seven unions, thereby restoring statutory bargaining rights only to those unions and the VA employees they represent, while simultaneously leaving outside of [federal labor law] coverage other unions whose members and represented employees work within the same VA subdivision,” AFGE wrote. “The secretary did not include the certification required by Section 4(b) of the executive order, and no such certification was ever published in the Federal Register . . . Instead, the secretary merely parroted the order and ‘agreed the Department of Veterans Affairs has as a primary function national security work.”

The union further argued that Collins violated the terms of the executive order itself when he exempted specific unions, rather than the offices and agency subdivisions that employ workers represented by those labor groups. This has had a chaotic effect at individual VA facilities, with employees stripped of their union rights continue to work alongside other workers who were spared from the edict, while VA firefighters and police officers, many of whom belong to AFGE as bargaining units are organized by facility, not job, have subsequently lost bargaining power via their colleagues’ loss of rights.

“EO 14251 did not merely exempt these three positions or give the secretary authority to do so,” the lawsuit states. “Rather, it exempted ‘the immediate, local employing offices of any agency police officers, security guards or firefighters.’ . . . Indeed, at VA medical centers across the country, bargaining unit members of the same AFGE local union are divided into two groups—police officers who kept their collective bargaining rights and non-police officers who lost their rights—because of the VA’s failure to implement Section 2 according to its plain meaning.”

The VA briefly was halted from implemented the executive orders as part of a preliminary injunction secured by AFGE’s national office, though that decision itself was halted by a three-judge panel on the Ninth Circuit Court of Appeals. The entire Ninth Circuit is in the midst of considering whether to overturn that decision and block the edict more broadly.