Justice Department Lawyers Seek to Lock in Union Before Trump

Civil rights and environmental lawyers are rushing to certify first-ever union representation at the Justice Department just before another Trump administration that’s promised to erode federal job protections and upend their divisions’ anti-discrimination and pollution reduction missions.

DOJ management has been negotiating in recent weeks with union organizers over which employees at the Civil Rights Division and Environment and Natural Resources Division are eligible under federal sector labor law to vote on selecting the National Treasury Employees Union to represent them, NTEU said. Once those debates are resolved, secret ballot elections overseen by the Federal Labor Relations Authority can be scheduled, impacting up to hundreds of DOJ lawyers.

The union has filed petitions for the two elections by submitting signatures of support from at least half of the proposed bargaining units. But as the disputes over trial attorneys’ labor rights continue, the union campaigns are about to stretch into a new administration determined to eliminate what Trump has characterized as disloyal civil servants.

It was Trump’s pledge as a candidate to revive his 2020 “Schedule F” executive order to fire “rogue bureaucrats” that helped mobilize the DOJ lawyers over the past year, among other reasons.

Trump’s arrival Jan. 20 may put added pressure on union organizers to hold elections—or at least lock in deals with the department to schedule them—before Inauguration Day, labor experts said.

That’s particularly true at these two divisions, given Trump’s campaign rhetoric targeting civil rights and environmental enforcement, said Michelle Bercovici, a federal sector labor attorney.

Members of the civil rights employee union steering committee escalated their pitch after Trump’s victory in an email to colleagues Thursday obtained by Bloomberg Law. They warned that current division management is raising “unnecessary objections” threatening to “delay certification of the bargaining for months,” and called on the division’s top official, Kristen Clarke, to address their concerns at her staff-wide meeting later that day.

An attendee, who spoke on condition of anonymity, said Clarke didn’t bring up the union effort.

“The Civil Rights Division remains fully committed to the right of our employees to organize consistent with federal law,” a DOJ spokesperson said in a statement.

The career employees at both divisions clashed with political leaders in prior GOP administrations—including Trump loyalist and former ENRD chief Jeffrey Clark. James Sherk, an architect of Trump’s prior civil service policies, has cited Civil Rights Division lawyers’ refusal to take assignments they ideologically disagreed with in Trump’s prior term as a reason to let the president remove obstructionists.

“If I were the union, I would be wanting to get the election done and get certified so they can start the process of at least doing ground rules on negotiations as soon as possible,” said Bercovici, a partner at the Alden Law Group. “Part of the reason they want to organize is I think they’re anticipating that employees are going to need a voice and a lot more protections.”

Trump’s allies have made plans to overhaul DOJ civil rights enforcement including by focusing on anti-white discrimination. The environmental lawyers, who litigate to combat climate change, are also poised to have their focus shifted.

‘Schedule F’

Unlike counterparts at other federal agencies, trial attorneys at DOJ litigating divisions have never had union representation. The lawyers reached out to NTEU over the past year in large part due to dissatisfaction with the department’s return-to-office mandates imposed by Biden-appointed DOJ leaders last year.

Employee organizers have also called for stable conditions that insulate them from political interference. And NTEU has promoted how it can lobby Congress and file lawsuits to try safeguarding them from Trump’s pledge to reinstate on his first day in office the “Schedule F” executive order.

That initiative, which was rapidly voided once President Joe Biden took office, would’ve made it easier to terminate career employees across the government.

NTEU President Doreen Greenwald downplayed the impact of Trump’s election on the union’s efforts at DOJ, saying in a statement that “the organizing work at the two DOJ divisions will continue with the same urgency that it began.”

A Trump spokesman didn’t immediately respond to a request to comment.

Unclear Timing

It’s unclear if the union will be able to schedule elections at the two divisions before Jan. 20.

The federal sector labor board is holding a hearing Dec. 3 to discuss a question raised by the Civil Rights Division about the appropriateness of the proposed unit, said FLRA spokesman Eric Prag.

At ENRD, the parties continue to hash out differences on who is legally permitted to join the union,Greenwald said.

But if they can come to terms, a union spokeswoman added that “a negotiated, signed agreement to hold a representation election means the FLRA would proceed with the election, even if one party tried to pull out of the agreement.”

If DOJ managers reached a deal in the Biden administration’s final weeks to hold union elections, leadership under Trump may file objections with the FLRA over how the election was conducted. Were the union to win majority ballot approval, the next administration’s leaders would decide how aggressive of a posture to take when negotiating the initial bargaining contract.

The Civil Rights Division has contested the organizing rights of its criminal attorneys due to a law forbidding federal workers from collective bargaining if they work on matters affecting national security, according to a mid-October email from the division’s director of operational management that was obtained by Bloomberg Law.

The message also said that management was considering how to square the proposed bargaining unit with the FLRA’s 1984 decision to reject the union rights of Civil Rights Division employees because they lacked a shared community of interest that’s distinct from workers elsewhere in the department.

“We are very confident that our petition sets forth an appropriate bargaining unit and that the Civil Rights Division’s professional employees will prevail in forming a union,” the division’s employee union steering committee said in a statement.