Federal Agencies Ordered to Not Work with Unions
Trump’s executive order may be used as justification for throwing out collective bargaining agreements with their workforces
`OPM Tells Agencies to Stop Working Collaboratively with Unions
“agencies should take steps to abolish existing forums, consistent with law and should move to rescind any agency-wide and local labor-management partnership councils, committees, and labor-management forums”
Erich Wagner | December 15, 2017
Federal agencies may use President Trump’s executive order abolishing labor-management councils across government as justification for throwing out collective bargaining agreements with their workforces, guidance from the Office of Personnel Management suggested Wednesday.
In a memo to agencies, acting OPM Director Kathleen McGettigan instructed departments to abolish their labor-management forums and eliminate any rules or policies related to those forums. The memo also ordered agencies to examine whether their agreements with federal employee unions include provisions involving the forums or other labor outreach for “pre-decisional involvement,” and when applicable, to renegotiate or get rid of them.
“If a term or article of a collective bargaining agreement or memorandum of understanding was explicitly agreed upon for the purpose of creating and supporting a forum . . . the [order] may also grant agencies the authority to declare such agreements non-enforceable and thus null and void absent the need to renegotiate these agreements,” McGettigan wrote. “Similarly, if a term or article of a collective bargaining agreement or memorandum of understanding was explicitly agreed upon to require or promote bargaining and pre-decisional involvement, agencies may also have the authority to declare such agreements non-enforceable.”
Additionally, OPM instructed agencies to reach out to labor representatives for “pre-decisional” collaboration on an issue “only to the extent that the cost of doing so brings tangible benefits to the agency.” Collective bargaining agreements that require such outreach “without the sole consideration being the tangible benefit of the agency” also should be renegotiated.
Robert Tobias, former president of the National Treasury Employees Union and a distinguished practitioner in residence at American University’s School of Public Affairs, said OPM’s memo goes far beyond what the George W. Bush administration did when it rescinded President Clinton’s executive order requiring labor-management councils.
“When Bush acted to rescind Clinton’s executive order, many, many relationships continued to use pre-decisional involvement and to operate as though [the order] was still in existence,” Tobias said. “They did it because both parties found it advantageous to continue operating that way . . . Because of the greater positive labor-management relationship, problems were solved faster and better.”
The requirement that the cost of pre-decisional involvement be outweighed by “tangible benefits” could create a nearly impossible bar for agencies to meet when justifying their actions to OPM, Tobias said.
“Agencies must calculate the benefits, to measure pre-decisional involvement’s success on improving the operations of the agency, and to the extent that was done, it should be data that’s easy to gather,” he said. “But data that’s not easy to gather is the impact of the positive relationship that’s created through pre-decisional involvement, whether it’s fewer days spent in bargaining, fewer grievances filed or fewer unfair labor practices filed.”
Federal employee unions blasted the guidance as an outright attack on organized labor.
“The guidance shows that the administration’s action regarding labor-management forums goes far beyond the ridiculous notion that constructive dialogue with front-line employees is not worthwhile,” said J. David Cox, national president of the American Federation of Government Employees. “The guidance is a vicious attack on collective bargaining and shows profound disrespect to the men and women who secure our borders, protect us from the criminals incarcerated in federal prisons, care for our veterans and make sure seniors get their Social Security checks.”
NTEU National President Tony Reardon said that, counter to the administration’s argument, removing labor-management councils will make it harder for agencies to act efficiently.
“The OPM guidance issued Dec. 13 for agencies to implement the executive order abolishing labor-management councils is yet another step in the administration’s efforts to sideline the voices of frontline employees and diminish their role in the workplace,” Reardon said in a statement. “It also undercuts other administration guidance that agencies should be strengthened by removing barriers that make it harder for front-line employees to deliver results.”
Tobias said OPM’s guidance, and particularly the provision allowing agencies to declare collective bargaining agreements unenforceable, is destined to produce unfair labor practice filings and a return to the pre-Clinton-era labor-management relationship.
“The message to unions is that it’s really a return to the adversarial basis of collective bargaining that existed from the inception of the labor-management program,” Tobias said. “All of these studies that led up to [Clinton’s] executive order said that the adversarial labor-management relations will not be effective in solving employee problems or increasing organizational success . . . And I would say it’s a return to that adversarial relationship of the past.”
Employee Groups Decry Trump's Decision to Abolish Labor-Management Council
By Erich Wagner
Government Executive, October 2, 2017
Officials with groups representing federal employees and managers all criticized the decision by President Trump to disband labor-management forums at federal agencies created during the Obama administration.
In an order issued Friday, Trump rescinded Executive Order 13522, which established the National Council on Federal Labor-Management Relations and paved the way for a number of department- and agency-level forums between labor and management across government. The decision does not affect existing collective bargaining agreements.
J. David Cox, national president of the American Federation of Government Employees, said these forums, where rank-and-file employees and federal managers can work collaboratively to improve how agencies operate, are especially important in light of recent natural disasters and the planned reorganization of government.
“Federal employees are on the frontlines of hurricane recovery efforts and are taking on increased responsibilities as most of President Trump’s political positions remain unfilled,” he said in a statement. “Now is a time for more dialogue between rank-and-file workers, their managers and administration leadership—not less. Removing opportunities for these conversations to occur is yet another attempt to silence the voice of working people and their labor representatives.”
Federal Managers Association National President Renee Johnson, who served on the national council, said the forum improved relations between labor groups and managers.
“I was disappointed, but not surprised, to hear the executive order creating the National Council on Federal Labor-Management Relations was revoked,” she said in a statement. “The council provided the chance to learn from others who have found success through labor-management discussions. Additionally, simply having the time together helped each of the organizations on the council to better understand our colleagues and the challenges their departments and agencies face.”
Tony Reardon, national president of the National Treasury Employees Union, also criticized Trump’s omission of the Federal Advisory Council on Occupational Safety and Health from the list of advisory councils to be reauthorized before the Oct. 1 deadline.
“This is an ominous sign for the future of federal labor-management relations,” Reardon said. “For an administration that is trying to reduce operational costs and make agencies run more efficiently, to state that it is too time-consuming and costly to meet with its own employees is self-defeating.”
Robert Shea, who served in the Office of Management and Budget during the George W. Bush administration, was blunt in his critique of Trump’s decision. Bush similarly cancelled a collaborative council between labor and managers that was put in place by the Clinton White House.
“My initial thought on the move to end the council is it was a dumb idea when President Bush did it,” he said in an email. “And it’s a dumb idea now—a needless poke in the eye of an essential partner, though an often difficult one, in improving government’s performance and efficiency.”
For Robert Tobias, former president of NTEU and a distinguished practitioner in residence at American University’s School of Public Affairs, the move is emblematic of a White House that does not base its decisions on data.
“It seems to me that by cancelling it, it’s an extreme example of trying to micromanage a 2 million-person workforce,” he said. “The president can’t possibly know what advantages or disadvantages are occurring across the country from these local management forums.”
Tobias also argued that Trump’s argument in his order—that “public expenditures on the council and related forums have produced few benefits to the public”—misunderstands the value that the councils provide. In fact, the cost of litigation brought by unions in the absence of a collaborative process could dwarf the expenses associated with administering the councils, he said.
“My assumption is that many will revert to an adversarial, rather than collaborative, system, which will cost more for the federal government to litigate these issues rather than get them resolved more amicably before litigation occurs,” Tobias said. “There are some pretty thorough studies that came out of the Clinton experience, where managers and union leaders both said there were savings as a result of having a more collaborative relationship.”
Wednesday, December 13, 2017
HEADS OF EXECUTIVE DEPARTMENTS AND AGENCIES
KATHLEEN M. McGETTIGAN, ACTING DIRECTOR
Guidance for Implementation of Executive Order 13812
Through Executive Order 13812 (Order) signed on September 29, 2017, President Trump revoked Executive Order (E.O.) 13522 of December 9, 2009, Creating Labor-Management Forums to Improve Delivery of Government Services as extended by E.O. 13708 of September 30, 2015, Continuance or Reestablishment of Certain Federal Advisory Committees, which established the National Council on Federal Labor-Management Relations (Council) and implemented labor-management forums throughout the executive branch. E.O. 13812, sec. 2(a). In addition to revoking E.O. 13522, the Order directs heads of executive departments and agencies to “promptly move to rescind any orders, rules, regulations, guidelines, or policies implementing or enforcing Executive Order 13522” to the extent they can do so “consistent with law.” Id. at sec. 2(b). The President noted, however, that “[n]othing in this order shall abrogate any collective bargaining agreements in effect on the date of this order.” Id. at sec. 3(a).
In reaching this decision, the President found that the Council and the forums “have consumed considerable managerial time and taxpayer resources” while having failed to “fulfil their goal of promoting collaboration in the Federal workforce,” and that related public expenditures “have produced few benefits to the public.” E.O. 13812, sec. 1. The President concluded, “[T]hey should, therefore, be discontinued.” Id. The U.S. Office of Personnel Management (OPM) is issuing this guidance memorandum to help agencies meet the requirements of the Order.
E.O. 13812 abolishes the requirements previously imposed on agencies to form labor-management forums and engage in pre-decisional involvement in all workplace matters with employees and their union representatives. It also directs agencies to rescind orders, rules, regulations, guidelines, or policies to implement E.O. 13522. Accordingly, agencies should take steps to abolish existing forums, consistent with law and should move to rescind any agency-wide and local labor-management partnership councils, committees, and labor-management forums formed pursuant to E.O. 13522. Where the agencies have issued “orders, rules, regulations, guidelines, or policies” in connection with the creation of the forums, they should rescind those instruments and documents that are associated with these forums and which may create legal impediments to abolishment of the forums. If a forum, or guideline, rule, or policy associated with that forum, has been imbedded into a collective bargaining agreement or other memorandum of understanding with a collective bargaining agent for employees at the agency, the agency should seek to renegotiate those terms at the earliest practicable juncture. Agencies have discretion under the Federal Service Labor-Management Relations Statute (5 U.S.C. Chapter 71) to adopt a labor relations strategy best suited to their own needs.
Nevertheless, in revamping your strategy, following elimination of these forums, agencies should be mindful of the President’s finding that “labor-management forums have consumed considerable managerial time and taxpayer resources,” but have produced few benefits to the public.
Consistent with the rescission of E.O. 13522, agencies should utilize pre-decisional involvement (PDI) only to the extent that the cost of doing so brings tangible benefits to the agency. To the extent to which agencies utilization of PDI, pursuant to Section 3(a)(ii) of E.O. 13522, is imbedded into collective bargaining agreements or other memorandum of understanding and such agreements compel agencies to utilize PDI without the sole consideration being the tangible benefit to the agency accrued from its utilization, the agency should seek to renegotiate those agreements at the earliest practicable juncture.
If a term or article of a collective bargaining agreement or memorandum of understanding was explicitly agreed upon for the purpose of creating and supporting a forum pursuant to E.O. 13522, the rescission of E.O. 13522 may also grant agencies the authority to declare such agreements non-enforceable and thus null and void absent the need to renegotiate these agreements. Similarly, if a term or article of a collective bargaining agreement or memorandum of understanding was explicitly agreed upon to require or promote “(b)(1)” bargaining and pre-decisional involvement pursuant to E.O. 13522, agencies may also have the authority to declare such agreements non-enforceable and thus null and void. We recommend that each agency consult with agency counsel to determine what steps may be necessary and appropriate.
To be consistent and in accord with the purposes of E.O. 13812, by January 12, 2018, agencies are asked to inform OPM of steps taken to ensure compliance with Section 2 of the President’s Order. This notification should include a detailed itemization of the costs of participating in such forum(s) and/or PDI during Fiscal Year (FY) 2017, including employee staff time and any other expenses, and a listing of any tangible benefits the agency has realized through use of such forums and/or PDI in previous years. Agencies should note if their records on FY 2017 costs are incomplete. This information can be emailed to email@example.com. Any agencies that intend to continue forums (or equivalent) notwithstanding E.O. 13812 and/or PDI should keep records of the costs associated with such activities, as described above, for future reporting requirements.
If you have any questions about this guidance or E.O. 13812, please contact OPM’s Accountability and Workforce Relations office at (202) 606-2930 or firstname.lastname@example.org.
cc: Chief Human Capital Officers, and Human Resources Directors
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