Court rules managers can't be legally forced to bargain

President Clinton's 1993 executive order instructing federal managers to bargain over more issues with employee unions is not legally enforceable, a federal court has ruled.

In a much-watched labor-management relations case, the U.S. Court of Appeals for the District of Columbia ruled Friday that only the White House can enforce the order, not the courts. Unions will not be able to file complaints with the Federal Labor Relations Authority when agencies refuse to bargain over so-called "permissive" issues.

"An insubordinate agency is subject to executive branch enforcement of the [executive order] through persuasion and, ultimately, termination of the resisting official," the court said.

In section 7106(b)(1) of federal labor-management relations law, agencies are given the option to elect to bargain over "the numbers, types, and grades of employees or positions assigned to any organizational subdivision, work project, or tour of duty, or ... the technology, methods, and means of performing the work." Those issues are often referred to as "permissive" or (b)(1) issues. In 1993, President Clinton issued Executive Order 12871, which instructed agencies to bargain over (b)(1) issues.

Despite the order, the Patent and Trademark Office, the Veterans Affairs Department and the Air Force refused to bargain over (b)(1) issues. In the Patent Office's case, the agency refused to bargain over whether computer science patent examiners should be hired for two-year terms or permanent appointments. The Air Force filled several vacant positions without negotiating with the union. The Veterans Affairs Department did not negotiate with its union over whether lab technicians should be allowed to perform "certain dental assistant duties on a regular rotational basis."

In each case, the union filed a complaint with the FLRA, arguing that the agencies were required to bargain over (b)(1) issues under Executive Order 12871. But the FLRA rejected the complaints, saying it does not have the authority to enforce executive orders.

In its decision Friday, the appeals court upheld the FLRA's position. The court noted that Section 3 of the executive order states that the order "does not create any right to administrative or judicial review, or any other right, substantive or procedural, enforceable by a party."

National Treasury Employees Union President Robert Tobias said he was disappointed with the court's decision, but urged the President to enforce his order.

"For six years now, far too many agencies have been ignoring the intent and spirit of this executive order," Tobias said. "It is imperative for the President to act and deliver on the promise of partnership and meaningful involvement of federal employees in the federal workplace."

The Clinton Administration earlier this year floated a draft memorandum that would put political pressure on agency heads to bargain over (b)(1) issues. Managers' groups opposed the draft memorandum, as did a majority of agency heads. The memorandum has not been issued.

The court's decision is NAGE v. FLRA, No. 98-1313.