A U.S. District Court judge ruled that major components of three May 2018 executive orders overstep presidential authority, but the Office of Personnel Management is reminding agencies that they can still keep in line with the guidance of those orders when bargaining with federal employee unions.

The three executive orders gave agencies more freedom in dealing with poorly performing federal employees, significantly cut back on the amount of time employees could spend conducting union duties while on the clock, and called for the renegotiation of union contracts based on an Office of Management and Budget strategy.

Union officials soon afterward reported chaos at various agency buildings, as they were prevented from using agency space and union representatives were unable to meet with their fellow employees over complaints they had filed.

A judge ruled in August 2018 that the executive orders could not restrict use of official time employees could use, limit the negotiating time between unions and agencies, limit the numbers and grades of employees at agencies, or exclude misconduct-based removals from negotiated grievance procedures.

The Trump administration appealed the decision, but OPM was forced in the meantime to repeal guidance to agencies on enforcing the orders.

Now, OPM acting Director Margaret Weichert is encouraging agency heads to use the guidance offered by the executive orders in their contract bargaining with unions, through a Nov. 8 memo to agency leadership.

“As noted in OPM’s preliminary guidance, the court’s decision does not limit or otherwise modify agency or union collective bargaining rights and obligations under the Federal Service Labor-Management Relations Statute,” Weichert wrote.

“This includes the agency’s right to make proposals in the context of collective bargaining, including over subjects that were discussed in the executive orders, and to fashion those proposals in a manner that best reflects critical agency priorities. Consistent with this principle, agencies should approach bargaining, including bargaining over those subjects covered by the currently enjoined provisions of the executive orders, as a party to the statutory collective-bargaining process — that is to say, in a good-faith manner that best reflects agency mission needs.”

According to the memo, components of the executive orders that were struck down by the judge but still remain at agency discretion during negotiations include:

  • Determining the numbers, types, and grades of employees at any organization or project
  • Limiting the period of opportunity for an employee in danger of being fired to demonstrate acceptable performance
  • Authorizing the amount of union duties performed during work hours, also known as official time, that employees can conduct
  • Determining what constitutes a reasonable length of time for collective bargaining agreement negotiations

“Agencies are encouraged to carefully review the still-operative provisions of executive orders 13837 and 13839 and to exercise their independent judgment in deciding how best to pursue these policies through collective bargaining,” Weichert wrote.

But federal employee unions are emphasizing that agencies are still expected to bargain in good faith with union representation.

“The additional guidance from the Office of Personnel Management on the implementation of the president’s May 25 executive orders is simply a restatement of the provisions of those orders that were not struck down by a federal judge in August. One thing is abundantly clear, however. federal agencies have a requirement to bargain in good faith with federal unions. That standard is established in federal law and NTEU intends to hold agencies to that statutory obligation,” said Tony Reardon, national president of the National Treasury Employee Union.

Jessie Bur covers federal IT and management.

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