Federal agencies may use President Trump’s executive order abolishing labor-management councils across government as justification for throwing out collective bargaining agreements with their workforces, guidance from the Office of Personnel Management suggested Wednesday.
In a memo to agencies, acting OPM Director Kathleen McGettigan instructed departments to abolish their labor-management forums and eliminate any rules or policies related to those forums. The memo also ordered agencies to examine whether their agreements with federal employee unions include provisions involving the forums or other labor outreach for “pre-decisional involvement,” and when applicable, to renegotiate or get rid of them.
“If a term or article of a collective bargaining agreement or memorandum of understanding was explicitly agreed upon for the purpose of creating and supporting a forum . . . the [order] may also grant agencies the authority to declare such agreements non-enforceable and thus null and void absent the need to renegotiate these agreements,” McGettigan wrote. “Similarly, if a term or article of a collective bargaining agreement or memorandum of understanding was explicitly agreed upon to require or promote bargaining and pre-decisional involvement, agencies may also have the authority to declare such agreements non-enforceable.”
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Additionally, OPM instructed agencies to reach out to labor representatives for “pre-decisional” collaboration on an issue “only to the extent that the cost of doing so brings tangible benefits to the agency.” Collective bargaining agreements that require such outreach “without the sole consideration being the tangible benefit of the agency” also should be renegotiated.
Robert Tobias, former president of the National Treasury Employees Union and a distinguished practitioner in residence at American University’s School of Public Affairs, said OPM’s memo goes far beyond what the George W. Bush administration did when it rescinded President Clinton’s executive order requiring labor-management councils.
“When Bush acted to rescind Clinton’s executive order, many, many relationships continued to use pre-decisional involvement and to operate as though [the order] was still in existence,” Tobias said. “They did it because both parties found it advantageous to continue operating that way . . . Because of the greater positive labor-management relationship, problems were solved faster and better.”
The requirement that the cost of pre-decisional involvement be outweighed by “tangible benefits” could create a nearly impossible bar for agencies to meet when justifying their actions to OPM, Tobias said.
“Agencies must calculate the benefits, to measure pre-decisional involvement’s success on improving the operations of the agency, and to the extent that was done, it should be data that’s easy to gather,” he said. “But data that’s not easy to gather is the impact of the positive relationship that’s created through pre-decisional involvement, whether it’s fewer days spent in bargaining, fewer grievances filed or fewer unfair labor practices filed.”
Federal employee unions blasted the guidance as an outright attack on organized labor.
“The guidance shows that the administration’s action regarding labor-management forums goes far beyond the ridiculous notion that constructive dialogue with front-line employees is not worthwhile,” said J. David Cox, national president of the American Federation of Government Employees. “The guidance is a vicious attack on collective bargaining and shows profound disrespect to the men and women who secure our borders, protect us from the criminals incarcerated in federal prisons, care for our veterans and make sure seniors get their Social Security checks.”
NTEU National President Tony Reardon said that, counter to the administration’s argument, removing labor-management councils will make it harder for agencies to act efficiently.
“The OPM guidance issued Dec. 13 for agencies to implement the executive order abolishing labor-management councils is yet another step in the administration’s efforts to sideline the voices of frontline employees and diminish their role in the workplace,” Reardon said in a statement. “It also undercuts other administration guidance that agencies should be strengthened by removing barriers that make it harder for front-line employees to deliver results.”
Tobias said OPM’s guidance, and particularly the provision allowing agencies to declare collective bargaining agreements unenforceable, is destined to produce unfair labor practice filings and a return to the pre-Clinton-era labor-management relationship.
“The message to unions is that it’s really a return to the adversarial basis of collective bargaining that existed from the inception of the labor-management program,” Tobias said. “All of these studies that led up to [Clinton’s] executive order said that the adversarial labor-management relations will not be effective in solving employee problems or increasing organizational success . . . And I would say it’s a return to that adversarial relationship of the past.”