For the second time this month, a third-party arbitrator has ruled the Trump administration violated federal employees’ collective bargaining rights.

Kathleen Jones Spilker found that the Department of Health and Human Services violated its national agreement with the National Treasury Employees Union (NTEU) when it terminated approximately 3,495 probationary and trial employees on Feb. 14, 2025, and again when it let go of approximately 1,600 employees on May 8, 2025.

Spilker sustained NTEU’s grievance on July 24, opening the door for a negotiated remedy between the two sides.

“The mass HHS layoffs are not only disastrous for employees and the public they serve — they are also illegal,” said NTEU National President Doreen Greenwald in a release. “We are grateful to the NTEU members whose brave testimony proved that they were not fired for their performance. In reality, they had superior performance evaluations doing critical public health and safety work on behalf of all Americans.”

An email to HHS seeking comment on the arbitrator’s decision wasn’t immediately returned.

Spilker’s decision comes just a week after another arbitrator determined that the IRS violated the collective bargaining agreement of its workers by ending remote work and telework in March 2025. In that case, Arbitrator Christopher Shulman ordered the IRS to return telework and remote work arrangements to pre-return-to-office levels for tens of thousands of bargaining unit employees. The decision also tells the IRS to cease any further violations of its collective bargaining agreement.

Several other arbitrators over the last year have ruled in favor of the employee unions, including cases at the departments of Justice and Housing and Urban Development and the Social Security Administration. In many of those cases, the administration appealed the decision to the Federal Labor Relations Authority, which has a majority of Trump appointees. Agencies, generally, are not obligated to comply with the arbitrator’s decision while the case is under FLRA appeal.

A RIF by another name

In the latest decision, Spilker found HHS violated the national agreement by conducting a reduction in force (RIF) without following the provisions of the collective bargaining agreement that required the agency to give official notice to the union and offer the union an opportunity to bargain on any and all impact and implementation issues.

The agency argued that it didn’t violate the provision in the agreement because it didn’t conduct a RIF in February.

But the arbitrator disagreed.

“The agency did not conduct an individualized assessment of the approximately 3,495 employees it terminated on Feb. 14, 2025, nor of the approximately 1,600 employees it terminated on May 8, 2025. The sheer large number of employees that were terminated in a matter of days discredits any argument that these terminations were due to an analysis that individual employees were performing unsatisfactory or for conduct reasons. In practice, it should have taken weeks or months to review the individual performance of 3,495 employees. Instead, the agency executed a centrally-directed downsizing effort, applying the same justification across the board to an entire class of employees because it was ordered by the President,” Spilker wrote. “Accordingly, one must conclude that the agency’s Feb. 14. 2025 action was clearly from its inception through its execution a reduction in force masquerading as probationary terminations.”

Spilker also said HHS violated the provision (Article 3) in the collective bargaining agreement that required them to negotiate with NTEU when the agency wishes to implement changes in personnel policies, practices and working conditions which are not specifically covered by the CBA.

“This wholesale dismissal of employees on unacceptable grounds also effected a change in conditions of employment which would trigger a bargaining obligation as contemplated by Article 3. Having pretended that the action was a permissible probationary dismissal, the agency inevitably violated Article 3 by not offering to enter into negotiations,” she said.

Regulation wasn’t in place

As for the May 8 decision to terminate probationary and temporary employees, Spilker found that HHS relied on a regulation to justify its decision that was not yet effective. HHS said it was using its authority under 5 C.F.R. § 11.5 that continued employment of these probationary employees didn’t advance the public interest. The problem was the regulation didn’t take effect until July, so using it as the rationale for the May firings was illegal.

“The agency could not justifiably rely on this because a is binding until properly amended, which in this case, would not be until the effective date of the new regulation. Executive orders cannot directly amend the Code of Federal Regulations (CFR), but agencies must follow the regulations currently in place until they are repealed through rulemaking,” she wrote. “Where the new regulations were not yet in effect there was not a vacuum. Unwittingly, the agency violated Subpart H of part 315 of title 5, Code of Federal Regulations by its May 8, 2025 actions.”

NTEU’s Greenwald said, “This resounding victory recognizes that the performance of these probationary employees was never what this case was about. Instead, they were swept up in the administration’s unlawful attempts to break the government by getting rid of massive numbers of employees without recognizing their rights or the rights of the union that represents them.”

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