OPM: Agencies Can Implement Workforce EOs at Some Agencies Without Bargaining

The Trump administration on Monday signaled that it is speeding up efforts to roll back the influence of federal employee unions at federal agencies through a series of controversial executive orders, instructing agencies to implement the orders unilaterally in some instances.

In May 2018, President Trump signed three executive orders that sought to make it easier to fire federal workers, streamline collective bargaining negotiations, and severely restrict union activities by withdrawing subsidized use of federal property for representational work as well as limiting the hours union employees can spend on "official time" performing that work.

The orders were the focus of a lengthy court battle between unions and the administration, until a federal appeals court ruled against the labor groups on jurisdictional grounds. An injunction blocking the orders’ implementation was lifted last month.

Since the orders were first signed, the administration has said that implementation of the executive order’s provisions, like the cuts to official time and the removal of adverse personnel actions from grievance proceedings, should be implemented through the course of collective bargaining negotiations, and the orders state that agencies should not “abrogate” existing union contracts.

Although most agencies have followed those orders, the Education Department and the Environmental Protection Agency each unilaterally implemented new contracts without negotiating with labor unions. And the Veterans Affairs Department is moving forward with a plan to collect rent from, or evict, the American Federation of Government Employees from department property.

New guidance issued Monday by OPM Director Dale Cabaniss could upend things even further. In addition to clarifying that agencies currently negotiating with unions should adjust their positions to seek implementation of the orders’ provisions, Cabaniss wrote that agencies where a collective bargaining agreement has been automatically renewed without renegotiations may abrogate that contract.

Typically, a collective bargaining agreement contains a provision that states that, if neither the union nor the agency wish to renegotiate at the end of the contract’s term, the existing contract automatically renews, or “rolls over,” for an additional term.

“Whether or not parties opt to reopen an agreement, however, all relevant provisions of the EOs become operative and enforceable at the conclusion of a current term of a CBA,” Cabaniss wrote. “If the current term of a CBA expires and is not reopened (and thus ‘rolls over’ for another term based on the terms of an individual CBA), because the provisions of the EOs would be enforceable, agencies should still take steps to immediately apply [the orders’] terms, consistent with law.”

Federal employee unions blasted the guidance, accusing OPM of inviting agencies to violate contracts that they willingly chose to renew.

“Agencies must bargain changes to collective bargaining agreements, including changes related to the executive orders,” said AFGE National Secretary-Treasurer Everett Kelley. “Any attempt by agencies to unilaterally implement without bargaining will be met with a swift and appropriate challenge.”

National Treasury Employees Union National President Tony Reardon described the instructions to agencies as “reprehensible.”

“The OPM guidance issued Monday indicates the administration is getting more aggressive in its effort to implement the May 2018 executive orders designed to do lasting damage to the federal workforce,” he said. “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.”

In a statement, OPM spokesman Anthony Marucci said the guidance merely reiterates principles already laid out in the executive orders.

"This provision of the guidance in question reiterates the well-established principle that for CBAs that expire after the time that the executive orders become effective, any provisions of the executive order that conflict with applicable provisions of the CBA become immediately enforceable and agencies should take steps to enforce them," Marucci said. "OPM fully contemplates that enforcement and application of provisions of the EOs that conflict with current CBAs will proceed in a manner consistent with agency bargaining obligations pursuant to law."

Federal employee unions are still weighing whether to appeal to the Supreme Court in their legal challenge against the executive orders. In the meantime, they lack any other avenue to seek redress from perceived labor law violations, as the Federal Labor Relations Authority still lacks a Senate-confirmed general counsel to bring unfair labor practice complaints forward for adjudication.

This story has been updated to include comment from OPM.