Judge orders VA to restore collective bargaining

A federal judge in Rhode Island on Friday issued a preliminary injunction ordering the Veterans Affairs Department to reinstate its contract with the American Federation of Government Employees, ruling that the department’s implementation of President Trump’s executive order ousting unions from most federal agencies violated both the First Amendment and the Administrative Procedures Act.

AFGE’s lawsuit, filed last November, zeroes in on the VA’s actions to implement President Trump’s March 2025 executive order, which cites a seldom-used provision of the 1978 Civil Service Reform Act to strip two-thirds of the federal workforce of their collective bargaining rights on national security grounds, specifically the April 2025 decision to exempt some smaller unions from the edict and the termination last August of AFGE’s union contract, when the Office of Personnel Management was still advising agencies to refrain from terminating CBAs until the conclusion of litigation.

U.S. District Judge Melissa DuBose, a Biden appointee, cited reporting from Government Executive in which the VA justified exempting a smattering of smaller unions from the executive order’s provisions because they, unlike AFGE, had “posed no or minimal hinderance to VA operations” in considering the union’s claim that they were retaliated against for First Amendment activity. VA Secretary Doug Collins rescinded those exemptions two days after AFGE filed its lawsuit.

“That the defendants (1) accepted the EO’s invitation to exempt entities from the EO by naming several unions (other than plaintiffs) rather than subdivisions of departments as actually authorized by section 4 in the EO and then (2) took action to terminate the master CBA days after the defendants learned an appellate court was likely to rule in tis favor on the merits of the constitutionality of the EO are certainly strong indications of the defendants’ focus for the exemption vs. termination decisions,” she wrote. “Other than the one, vague, post hoc statement about national security that appears in [VA Chief Human Capital Officer Tracey] Therit’s declaration, there is zero indication from the defendants that the termination decision would have been made or implemented without the retaliatory motive.”

DuBose also found that the VA’s actions constituted violations of the Administrative Procedures Act’s prohibition against arbitrary and capricious agency decision-making, citing the gulf between the executive order’s purpose—removing unions from agencies on national security grounds—and the department’s stated reasoning, which focused on perceived difficulties in negotiating new workplace policies.

“The court notes again that neither the press release nor the internal memo released on August 6 mention national security concerns or interests, highlighting instead the cost to the VA of its employees’ union representation as well as the difficulty the VA has had rewarding high performing employees and holding poorly performing employees accountable,” DuBose wrote. “Without any mention of the basis authorized by the [federal sector labor management relations statute] and the EO for terminating coverage of Chapter 71 protections and therefore the collectively bargained agreements between unions and agencies or subdivisions, the court concludes that the reasons on which the defendants relied in August to explain the termination and the perceived benefits thereof cannot be a reasonable explanation for this agency action.”

Mary Jean Burke, president of AFGE’s National VA Council, applauded the decision in a statement Friday.

“Despite this administration’s shameful and hostile attempts to silence VA workers and perpetuate falsehoods that they have ‘no union,’ the leaders and members of AFGE/NVAC stand together with a clear message: we are still here,” she said. “[As] unionists, it’s our duty to stand up for what’s right and hold the VA accountable. We are a nation of laws. Every American knows the importance of free speech, the separation of powers, and the protections guaranteed to us in our nation’s Constitution.”