Jurisprudence

Biden Ousts All 10 of Trump’s Union Busters From Powerful Labor Panel

Biden gestures while speaking at a podium, with an American flag and a portrait of Abraham Lincoln in the background
President Joe Biden at the White House on Jan. 26. Doug Mills/Pool/Getty Images

On Tuesday, Joe Biden demanded the resignations of all 10 of Donald Trump’s appointees to the Federal Service Impasses Panel, a powerful labor relations board, in a major victory for federal unions. Eight members resigned, and two were fired after refusing to step down. Trump’s appointees—a group of partisan anti-labor activists—had hobbled federal unions for years, sabotaging their ability to organize and bargain collectively. Biden’s clean sweep, which was first reported by Government Executive’s Erich Wagner, marks a crucial step toward ending his predecessor’s campaign of federal union busting.

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The Federal Service Impasses Panel plays a major role in disputes between executive agencies and federal unions—disputes that often affect the government’s ability to administer programs fairly and lawfully. When unions and managers reach a stalemate at the bargaining table, the panel steps in to referee. It is supposed to find common ground between the parties to further the government’s official policy of promoting “collective bargaining in the civil service” and encouraging “the amicable settlements of disputes.” The panel has authority to write binding, unreviewable terms into unions’ contracts, and its members do not require Senate confirmation. Trump’s appointees consistently defied the panel’s legal obligations to remain a neutral arbiter. Instead, they displayed a clear pattern of siding with management and sometimes even imposed harsher terms than management requested. In an unprecedented and radical move, the panel even imposed terms that management did not request at all, like extending the length of an unfavorable contract. In other words, it functioned as intended: Trump stacked the panel with deeply ideological conservatives with extensive experience busting unions.

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For example, Trump installed Karen M. Czarnecki, a leader of the avowedly anti-labor Mercatus Center who previously worked at the American Legislative Exchange Council (which ghostwrites anti-union legislation for Republican legislators) and the Heritage Foundation (which publicly promotes that legislation). Patrick Wright and F. Vincent Vernuccio, two more Trump appointees, work at the Mackinac Center for Public Policy, an anti-union pressure group funded by the DeVos family.

Most of Trump’s appointees were affiliated with similar anti-labor groups, including the Freedom Foundation, Americans for Fair Treatment, the Goldwater Institute, the Fund for American Studies, and the Illinois Policy Institute. Others were management-side lawyers who specialize in union busting. Some appointees had questionable credentials, and many lacked any experience in mediation or arbitration. Panel member Michael Lucci, for instance, holds a B.A. in philosophy, and his official profile cryptically stated that he “completed self-directed coursework in economics” after college. (The fired members’ profiles were removed from the agency’s website on Tuesday night, but you can read an archived version here.)

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Predictably, Trump’s impasses panel sided against unions at almost every turn, empowering management to crush workers’ rights during bargaining. The existence of an anti-union impasses panel undermined collective bargaining across federal agencies by discouraging managers from compromising with employees. If managers reach a deadlock, after all, they can simply get the panel to rule in their favor. Indeed, union representatives have complained that managers have bargained in bad faith by manufacturing shortcuts to the panel, where they knew they’d get everything they want and even more. The Senate Democratic Caucus backed these complaints in a furious letter to the agency’s Trump-appointed commissioner, Andrew Saul. (Biden has not yet removed Saul, who remains in control over the Social Security Administration.)

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Employees at agencies throughout the executive branch have been scorched by Trump’s impasses panel. Its treatment of employees at the Social Security Administration, which oversees the country’s largest government program and operates the largest judicial system in the nation, provides a case in point. Shortly before the pandemic, the impasses panel rewrote the SSA union’s contract to roll back the agency’s teleworking program, which had increased employee efficiency. (Managers partially restored telework in 2020 several weeks after many other agencies switched to remote work.) It slashed the amount of time that workers could spend on union activities far beyond what management requested. And it abolished the agency’s responsibility to inform union members of their right to representation. To lock in these anti-union changes, the panel also extended the agreement by four years—though Biden’s new appointees should be able to reopen negotiations after overturning their predecessors’ policies.

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The panel’s assault on the SSA union has implications for millions of Americans. Administrative law judges at the SSA hear claims for disability benefits, and because they exercise judicial powers, they are meant to be independent. Their union contract safeguards this independence from political interference. At the bargaining table, however, the SSA’s leaders stripped these safeguards from the contract—and the impasses panel backed their decision. Melissa McIntosh, president of the agency’s administrative law judge union, told me that the panel “took away our ability to protect our independence through the contract,” thereby depriving disabled Americans of their due process right to a neutral arbiter.

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Trump’s appointees to the impasses panel were set to serve five-year terms, most of which will not expire until 2024 or 2025. Biden decided not to wait, cleaning house less than two weeks after taking office. (Trump, too, fired the entire panel toward the start of his presidency.) Biden can now appoint 10 replacements, who are not subject to Senate approval. He is expected to select candidates who will fulfill their duty to reach “amicable settlements” that protect federal unions from management overreach.

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Biden’s dismissal of the entire panel on Tuesday is the latest in a string of triumphs for organized labor. During his first days in office, the new president promptly ousted Donald Trump’s notorious union-busters at the National Labor Relations Board, appointed a labor-friendly replacement, and reversed executive orders that had severely limited federal unions’ ability to organize and bargain.

But Biden’s work is not yet finished: The Federal Labor Relations Authority, which houses the impasses panel, remains in Republican control.

The FLRA is governed by three members who issue binding decisions about federal unions’ rights. Trump appointed Republicans Colleen Duffy Kiko and James Abbott to the agency, giving it a 2–1 Republican majority. Kiko and Abbott issued a number of “policy statements” granting more power to managers and, by extension, eroding union rights. In an unusual move, these officials spontaneously released statements altering labor law because they were too impatient to wait for an actual dispute to come before them. Trump’s appointees also gave management new powers to restrict collective bargaining. For instance, they stripped unions of their right to bargain over workplace conditions before their current agreement expires. That move was especially devastating in light of the pandemic, blocking federal unions from negotiating new health and safety rules to limit infections. Kiko even tried to abolish the FLRA’s own union of nearly 40 years.

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When Biden took office, he elevated Ernest DuBester, the agency’s lone Democrat, to the chairman position, shifting some power away from the Republican majority. Still, the FLRA’s anti-union bent will continue until Biden replaces Abbott with another Democrat—which he can do almost immediately: Abbott’s term has already expired, and he can only continue serving until Biden appoints his successor (with Senate approval). Yet the new president has not named a candidate to succeed Abbott. Nor has Biden named a general counsel, a position that Trump left vacant to prevent the agency from effectively enforcing union rights.

These remaining tasks do not diminish the importance of Biden’s restoration of the impasses panel. If anything, they reveal just how much work the president must do to rid the federal government of Trump holdovers who are burrowed in. These individuals are not civil servants, but partisan activists who were selected to destroy their agencies from the inside. Ousting them is necessary to prevent the dead hand of the Trump administration from strangling the executive branch.

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