OPM tells agencies to get moving on workforce executive order implementation

Agencies with collective bargaining agreements whose terms have expired or rolled over must now reopen and implement all provisions of the president’s workforce executive orders, the Office of Personnel Management said Monday.

“All relevant provisions of the EOs” are fair game and should be implemented at the end of the current term of a collective bargaining agreement, OPM said, even if agencies and unions don’t opt to reopen an agreement.

Agreements that have at least a provision that’s inconsistent with the president’s workforce EOs should be reopened.

OPM on Monday evening released more detailed guidance, instructing agencies to fully implement all portions of the president’s executive orders on collective bargaining, official time and employee removals.

Nine key provisions of the workforce executive orders had been enjoined for more than a year, following an August 2018 decision from a federal district court. The injunction on the EOs expired after the U.S. Court of Appeals ruled in favor of the Trump administration and vacated the district court’s decision earlier this summer.

“Agencies should adhere to the now-effective provisions of the EOs in ongoing negotiations and reopen collective bargaining agreements at the soonest possible opportunity in order to conform applicable provisions of collective bargaining agreements (CBAs) with the EOs’ requirements,” the guidance reads. “The soonest possible opportunity will generally be at the conclusion of a current term of a CBA when all relevant provisions of the EOs become operative and enforceable.”

For ongoing collective bargaining negotiations, agencies should strive to include the provisions of the workforce executive orders within union agreements, OPM said.

“Given the fluidity of the bargaining process and the broad executive authority which is foundational to the EOs, it is anticipated that agencies will have broad discretion to make changes prior to the conclusion of bargaining pursuant to EO requirements,” the OPM guidance reads. “Agencies should consult with offices of human resources and general counsel to assess how these goals can be accomplished to the maximum extent feasible consistent with the duty to bargain in good faith.”

In addition, bargaining proposals that were delayed pending a decision on the workforce executive orders should resume as soon as possible, OPM said.

The OPM guidance also gives agency management discretion to, for example, approve or disapprove official time for employees to prepare grievances in certain circumstances.

OPM is also giving agencies leeway to use the EOs for the purposes of applying “persuasive weight” to grievances that have advanced to arbitration but haven’t gone to a hearing or don’t yet have a decision.

For unions, OPM’s latest guidance shows the administration is being more aggressive in implementing the president’s workforce executive orders.

“Legal challenges to these orders are still pending, and NTEU maintains our position that they are in direct violation with existing civil service law,” Tony Reardon, the union’s national president, said in a statement to Federal News Network. “Contrary to what this new OPM guidance suggests, agencies cannot assert their ‘independent’ judgment when it comes to weakening employee rights and blocking their access to union representation.”

OPM’s Nov. 25 guidance follows two earlier memos from the agency and the White House. The White House instructed agencies to revisit ongoing bargaining negotiations and implement all provisions of the workforce executive orders.

For the agencies who had executed a new collective bargaining agreement while the injunction on the president’s executive orders was in place, those agreements may stay in place, the president said last month.

The president’s memo and OPM’s latest guidance could set a new course for those negotiations — and will likely complicate those discussions, which, in many situations, have already been contentious.

An independent arbitrator in September ruled the Department of Health and Human Services had engaged in “bad faith” bargaining with NTEU and directed the two parties return to the bargaining table.

HHS, however, has filed an appeal to the arbitrator’s decision, meaning the department’s bargaining proposals, most of which were reaffirmed by the Federal Service Impasses Panel back in April, will remain in place for the foreseeable future.

For NTEU, the arbitrator’s decision should serve as a “warning to the administration that their efforts to run roughshod over employees at the bargaining table are not allowed,” the union said.

“NTEU intends to keep fighting for employees to have fair contracts that give them a meaningful voice in the workplace, so that the federal government can recruit and retain the best and the brightest into public service,” Reardon said.

Meanwhile, several federal employee unions have said implementation of the workforce executive orders has been widely varied and inconsistent.

The Department of Veterans Affairs was one of the first agencies to publicly announce their plans to implement the workforce EOs, giving unions a January deadline to either pay rent or leave currently occupied government office space.

Both the American Federation of Government Employees and the National Federation of Federal Employees have said other agencies have made attempts to implement the workforce executive orders, even though their existing collective bargaining agreements are either still in place or the agency hasn’t reopened them.

In hindsight, agencies who are beginning to implement the workforce EOs despite not having opted to reopen a current bargaining agreement with expiring terms, is consistent with OPM’s latest guidance.

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