The Fine Print of Trump’s Collective Bargaining Executive Order

The executive orders signed by President Trump last week that aim to streamline the firing process and significantly curb the influence of federal employee unions have produced a flurry of activity this week, as the largest union sued to block one order Wednesday and other groups considered similar action.

Administration officials last week said an order focused on agencies’ collective bargaining processes would direct agencies to complete negotiations with unions on CBAs within a year, and establish a working group to analyze CBAs for “wasteful” provisions. It also requires the creation of a public database of existing contracts and agreements between agencies and federal unions.

The text of the order, which is entitled “Developing Efficient, Effective, and Cost-Reducing Approaches to Federal Sector Collective Bargaining,” goes into far more detail about the make-up and activities of the labor working group, and could offer an avenue for agencies to quickly and unilaterally impose new agreements without union assent.

The White House argued that the current implementation of the statute governing federal labor-management relations “has fallen short” of the goals of an “effective and efficient government” set out in the 1978 Civil Service Reform Act.

The edict establishes an Interagency Labor Relations Working Group, consisting of the director of the Office of Personnel Management, representatives of agencies with at least 1,000 bargaining unit employees, and OPM staff. According to the order, no representatives of labor groups will be included.

The working group will be required to create an inventory of CBA language on subjects common to labor-management contracts; develop “model ground rules” that would minimize delays and set “reasonable limits” for good faith negotiations; and analyze provisions of existing CBAs, “particularly those that may infringe on, or otherwise affect, reserved management rights” and their impact on agency costs and efficiency.

The group also would share “information and analysis” on significant proposals and counter-proposals offered during negotiations and develop governmentwide approaches to bargaining issues.

Additionally, each agency that engages in collective bargaining must develop a report on all existing CBAs at least one year before they are up for renewal. Reports must include recommendations for new language to use in renegotiations that would “better support the objectives” of a more effective and efficient government. These reports will be classified as “guidance and advice” for collective bargaining, and “not subject to disclosure” to union officials or negotiators.

The order prescribes firm timelines for each stage of CBA negotiations: a maximum of six weeks for ground rules negotiations, and four to six months for negotiation of a full agreement shall be considered “reasonable.” If an agreement is not reached within these time frames, agencies are ordered to consider going to either the Federal Mediation and Conciliation Service or the Federal Services Impasses Panel for arbitration of unresolved issues. Agencies are required to inform the OPM director of any negotiations that have lasted longer than nine months.

The order encourages agencies to pursue immediate action if they deem a union negotiator to be delaying bargaining in bad faith. It offers two options: file an unfair labor practice against the union, or propose a new contract and then implement it unilaterally “if the collective bargaining representative does not offer counter-proposals in a timely manner.”

Robert Tobias, a former president of the National Treasury Employees Union and a distinguished practitioner in residence at American University’s School of Public Affairs, said the administration could set up a legal fight, by encouraging agencies to accuse unions of dragging their feet on negotiations, and then implement new CBAs on its own. The order streamlining the firing process orders agencies to renegotiate CBAs “on the earliest practicable date permitted by law.”

“This order makes clear that they have to wait until there’s an opportunity to bargain, except for the one clause that says you can unilaterally implement [changes],” Tobias said. “Now, agencies can move to renegotiate, but that doesn’t mean the union has to agree to renegotiate. So what this would mean is that the agency then puts all of this into effect, and then the union files an unfair labor charge. The [Federal Labor Relations Authority] will rule as it rules, and then someone will appeal to the circuit court and then to the Supreme Court. In the meantime, all of this stays in effect and there will be real damage to people.”

In an interview Wednesday, NTEU National President Tony Reardon said his organization will not agree to any CBA renegotiation until an agreement is up for renewal.

“Our view, and my position is that the CBAs that are currently in existence will remain so,” he said. “They will remain intact until they are reopened for negotiation at the time scheduled in the agreement, or when they expire. 100 percent of them.”