United States Marine Corps, Marine Air Ground Task Force Training Command, Marine Corps Air Ground Combat Center, Twentynine Palms, California (Agency) and American Federation of Government Employees, Local 2018 (Union)

74 FLRA No. 80

UNITED STATES

MARINE CORPS

MARINE AIR GROUND

TASK FORCE TRAINING COMMAND

MARINE CORPS

AIR GROUND COMBAT CENTER

TWENTYNINE PALMS, CALIFORNIA
(Agency)

and

AMERICAN FEDERATION

OF GOVERNMENT EMPLOYEES

LOCAL 2018

(Union)

0‑AR‑5810

_____

ORDER DISMISSING EXCEPTIONS

September 22, 2026

_____

Before the Authority:  Colleen Duffy Kiko, Chairman,

and Anne Wagner and Charles O. Arrington, Members

(Member Wagner dissenting)

I.               Statement of the Case

Arbitrator Michael D. Durick issued an award, and the Agency filed exceptions to that award.  Because we lack jurisdiction, we dismiss the exceptions.

II.             Background and Arbitrator’s Award

The Agency issued the grievant a letter of reprimand, and the Union filed a grievance challenging it.  The Agency denied the grievance, which the parties advanced to arbitration.  The Arbitrator issued an award sustaining the grievance.  The Agency filed exceptions on April 27, 2022, and the Union filed an opposition on May 17, 2022.

III.           Analysis and Conclusion:  We lack jurisdiction due to Executive Order 12171, as amended by Executive Order 14251.

On March 27, 2025, President Donald J. Trump issued Executive Order 14251 (EO 14251), which amended Executive Order 12171 (EO 12171) – pursuant to 5 U.S.C. § 7103(b)(1) and 22 U.S.C. § 4103(b) – to exclude certain agencies and agency subdivisions from the coverage of the Federal Service Labor‑Management Relations Statute (the Statute).^[1]

Section 7103(b)(1) of the Statute states:

The President may issue an order excluding any agency or subdivision thereof from coverage under [the Statute] if the President determines that—

(A) the agency or subdivision has as a primary function intelligence, counterintelligence, investigative, or national[‑]security work, and

(B) the provisions of [the Statute] cannot be applied to that agency or subdivision in a manner consistent with national[‑]security requirements and considerations.^[2]

The President determined in EO 14251 that (1) the excluded entities “have as a primary function intelligence, counterintelligence, investigative, or national[‑]security work,” and (2) the Statute “cannot be applied to [the excluded entities] in a manner consistent with national[‑]security requirements and considerations.”^[3]  Under EO 12171, as amended by EO 14251, the Department of Defense is excluded from the coverage of the Statute,^[4] with exceptions not relevant here.^[5]

As such, the Authority ordered the Agency to show cause why its exceptions should not be dismissed for lack of jurisdiction, based on EO 14251.^[6]  The Agency responded to the order and stated that EO 14251 applied to the Agency and, for that reason, the Authority lacked jurisdiction over this case.^[7]  Although the Authority provided the Union an opportunity to reply to the Agency’s response,^[8] the Union did not file a reply.  Consequently, the Union did not provide any reasons why EO 14251 should not apply here.

Apart from the Authority’s proceedings, the American Federation of Government Employees and five other unions (collectively, AFGE) filed a complaint asking the U.S. District Court for the Northern District of California to enjoin implementation of EO 14251 and declare it unlawful.^[9]  AFGE named the Department of Defense and the Secretary of Defense, among others, as defendants.^[10]  The District Court issued a preliminary injunction enjoining the agencies and agency subdivisions identified in EO 14251 from implementing it.^[11]  But the U.S. Court of Appeals for the Ninth Circuit (Ninth Circuit) stayed the injunction pending appeal,^[12] and later vacated the injunction.^[13]

In its decision vacating the injunction, the Ninth Circuit made several important findings.  First, the court found that AFGE did “not demonstrate[] a likelihood of success or serious questions on the merits” of its challenge to EO 14251.^[14]  Second, the court characterized ensuring national security as “an urgent objective of the highest order.”^[15]  Third, when considering the balance of equities and the public interest, the court held that the government’s national‑security interest outweighed AFGE’s interests in preventing enforcement of EO 14251.^[16]

At the early stages of AFGE’s litigation, the Authority placed this case in abeyance.  Since then, the Ninth Circuit made the three important findings mentioned above.  In addition, neither party to this case is currently involved in any other litigation in which that party is challenging EO 14251 or its implementation.  Relatedly, neither party to this case has obtained a currently active injunction concerning EO 14251 or its implementation.

Moreover, in previous cases where the President excluded entities from the Statute pursuant to his § 7103(b)(1) authority, the Authority dismissed the cases due to a lack of jurisdiction.  For example, in U.S. Attorney’s Office, Southern District of Texas, Houston, Texas, after the President amended EO 12171 to exclude the U.S. Attorney’s Office from the Statute’s coverage, the Authority dismissed multiple unfair‑labor‑practice cases involving that office.^[17]  In addition, Department of the Navy, Naval Telecommunications Center, Ward Circle involved an EO 12171 exclusion for “particular groupings of employees” within an agency or subdivision.^[18]  In that case, a union petitioned to represent a unit of employees who belonged to one of the excluded “groupings.”^[19]  Based on its determination that EO 12171 applied to the employees, the Authority dismissed the union’s petition to represent them.^[20]  Further, in AFGE, AFL‑CIO, Local 2118, the Authority dismissed a negotiability petition because it involved an entity that EO 12171 excluded from the Statute’s coverage.^[21]  Importantly, the Authority did not review the merits of the presidential national‑security determinations at issue in any of those cases before dismissing them.^[22]

Considering the factors mentioned above – including the pertinent precedent – the Authority finds it appropriate to take this case out of abeyance at this time, and to dismiss the Agency’s exceptions due to a lack of jurisdiction.^[23]

IV.            Order

We dismiss the exceptions.^[24]

Member Wagner, dissenting:

Executive Order 12171,^[25] as amended by Executive Order 14251,^[26] provides that, with exceptions not relevant here, the Agency is excluded from the coverage of the Federal Service Labor‑Management Relations Statute (the Statute).^[27]  As the Authority recently noted, these orders, as further amended by Executive Order 14343^[28] – collectively, “the exclusions orders” – “directly concern the Authority’s jurisdiction” and “are the subject of ongoing litigation in federal district and circuit courts.”^[29]  Given this ongoing litigation, the Authority has been “suspend[ing] the processing of cases involving parties covered by the exclusions orders as a prudential matter,” and has been holding those cases in abeyance.^[30]  “As part of its procedures, the [Authority] provides parties the opportunity to establish that they are not subject to the exclusions orders.”^[31]  “While a case is in abeyance, any raised claims are preserved, processing deadlines are suspended, and the [Authority] will not issue a final order to resolve the issues.”^[32]

I continue to believe that the most prudent course of action is to keep cases covered by the exclusions orders in abeyance until the litigation over those orders reaches a definitive conclusion – including any actions by the U.S. Supreme Court.^[33]  Although the majority cites previous examples of the Authority dismissing cases based on executive orders that excluded the relevant entities from the Statute,^[34] the executive orders in those cases were not the subject of pending litigation.  Thus, those cases do not support taking the instant case out of abeyance and dismissing it at this time.  Further, I note that, with specific regard to arbitration cases like the one before us, the filing of exceptions automatically stays the arbitrator’s award.^[35]  Therefore, holding such cases in abeyance has no meaningful effect on the excepting parties’ interests.

For these reasons, I disagree with the majority’s decision to take this case out of abeyance at this time.  Accordingly, I dissent.  In doing so, I express no view on the merits of the exclusions orders or how the majority applies them in this case.