Agencies have more guidance now from the Office of Personnel Management about how they should continue to comply with the president’s May executive orders — and respect a recent court order that invalidated several key provisions of them.

The spirit and intent of President Donald Trump’s executive orders on collective bargaining, official time and employee removals remain in effect, despite the federal district court’s August decision, acting OPM Director Margaret Weichert wrote Thursday in a memo to agency heads.

Weichert’s guidance follows a brief memo that former OPM Director Jeff Pon issued to agencies days after the court’s decision. That guidance simply told agencies to “fully comply” with the court order and rescinded portions of the EOs that had been invalidated.

OPM’s latest memo on the EOs offers more detail. It does not mention that the Trump administration has appealed the federal district court’s decision to the U.S. Court of Appeals.

Collective bargaining should promote agency efficiency and effectiveness and encourage high levels of employee engagement and performance, Weichert said.

“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 said. “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.”

Weichert’s guidance points to the places within the president’s executive orders where agencies might have more discretion and freedom to decide how best to implement the administration’s intended policies.

Agencies, for example, can still negotiate who and what to bargain over, the OPM guidance reads. They can still suggest that agencies and unions submit bargaining proposals in writing before negotiations begin, Weichert said.

“Similarly, agencies remain empowered under the statute to adopt positions on what they deem to be a reasonable length of time for their own [collective bargaining agreement] negotiations and to advance issues to mediation or to the Federal Service Impasses Panel when such time has been exceeded,” the memo reads.

OPM also encouraged agencies to continue to approach collective bargaining in “good faith” and in a manner that represents their individual mission needs, Weichert said. Agencies should use their best judgment to determine how these broad ideas described in the president’s EOs can be implemented in collective bargaining:

• Limiting opportunities for employees to show acceptable performance,
• Not requiring supervisors to use progressive discipline, and,
• Ensuring official time is authorized in amounts that are “reasonable, necessary and in the public interest.”

Weichert’s guidance follows a letter from 16 Democratic senators, who expressed “serious concerns” last week with the way agencies are responding to the court order. They also asked OPM to expand on the guidance the agency issued in August.

Federal unions have cited challenges in negotiating with the Social Security Administration, Health and Human Services Department and Veterans Affairs Department.

VA, which acknowledged its intention to break with the collective bargaining agreement it had signed with the American Federation of Government Employees and other unions, on Thursday announced its plans to eliminate official time for certain employees starting Nov. 15.

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