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Fort Campbell, Kentucky - Sept 2025: Army Corps of Engineers Louisville District joined Fort Campbell Middle School students, teachers, parents, Fort Campbell leaders, the Department of Defense Education Activity to dedicate the brand-new Fort Campbell Middle School. The appearance of U.S. Department of Defense (DoW) visual information does not imply or constitute DoW endorsement. Image: Army Corps of Engineers photo by Charles Delano

A federal appeals court has rejected the Trump administration’s request to keep in place a ban on union representation in a Defense Department component, breaking a recent pattern of appellate courts lifting injunctions issued against those orders by lower courts.

The 2-1 ruling by a panel of the U.S. Court of Appeals for the District of Columbia Circuit directly involves the application of one of a pair of orders stripping union rights only to the Department of Defense Education Activity, involving only about 14,000 employees. However, the same court earlier had lifted injunctions against those orders in two other cases while the lower court considers the merits of the union challenges.

Those three cases and others share the common assertion that President Trump exceeded his authority, by citing national security and related grounds, to revoke existing contracts and to bar future union representation for the majority of union-represented federal employees.

The majority ruling said that the government did not meet its burden to “demonstrate that it will face irreparable injury” if the injunction is left in place. It said that while under the law a President is entitled to deference on national security-related decisions the evidence shows that Trump “made no such determination as to DoDEA, so there is nothing to which we could defer.”

“We have long required stay applicants to show that their asserted injuries are imminent . . . The government did not even attempt to demonstrate that the indirect effects on national security it posited could meet that standard, and it is far from self-evident that they would,” the decision said.

Addressing the broader issue underlying the cases, one of the judges wrote separately that “no plausible reading of the statute would permit the Executive to exclude a plethora of agencies from coverage [under federal labor-management law] for reasons that have nothing to do with national security . . . we need not blindly accept the government’s dubious contention that a subdivision staffed by grade-school educators plays a prominent role ‘in support of DoD’s overall national security mission.’”

The dissenting judge wrote that injunction should be stayed because it “has hampered—and will hamper— the President’s congressionally authorized national security prerogatives.”

Bureau of Prisons Revokes Union Contracts

The ruling comes as more agencies, most recently the Bureau of Prisons, carry out the original order or a more recent one extending it. Legislation meanwhile is pending in Congress to block the orders, either entirely or only as they apply to DoD.

The Bureau of Prisons revoked union representation for its 30,000 employees – blocking them from having a union rep accompany them in meetings or interviews. “Essentially, with the dismantling of the Union and in extension the CBA, employees won’t be able to utilize Weingarten Rights as that only applies to unionized employees, which, due to the EO and the BOP interpretation of such an order, BOP employees would no longer be,” explained Ryan Nerney, managing partner at Tully Rinckey PLLC. “This also brings to light more focus on Kalkines and Garrity warnings, which depending on the nature of the meeting/interview/investigation, an employee may or may not have right to representation during such an interview.  However, for any disciplinary proceeding and/or process, an employee would generally still retain right to representation during such proceedings.”


Note: A recent executive order gives the Department of Defense the “secondary” title of Department of War to better emphasize “readiness and resolve,” with legislation introduced in Congress to formalize the name change.

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