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OPM Updates Agencies, Unions on Labor-Management Forums

A Trump-era order shutting down union-management councils at federal agencies remains “under review,” officials said, but in the meantime, agencies may elect to start new ones if they wish.

The Office of Personnel Management on Tuesday announced that agencies may elect to restart labor-management forums if they wish, even though President Biden has not yet rescinded a Trump-era executive order discontinuing their use.

Former presidents Clinton and Obama both relied on councils composed of agency leaders and union officials to work collaboratively to solve problems outside the often adversarial proceedings of formal bargaining, although presidents Bush and Trump did away with the forums upon taking office. Although Biden has issued multiple executive orders rescinding Trump-era workforce policies, the order discontinuing labor-management councils remains in place.

In guidance to agency heads published Tuesday, acting OPM Director Kathleen McGettigan said her agency has received questions from multiple agencies and labor leaders about the status of labor-management forums, given Biden’s executive order encouraging union organizing and instructing agencies to bargain over so-called “permissive” topics.

McGettigan said that although Trump’s executive order ending labor-management councils remains in effect, it is currently “under review.” In the meantime, she clarified that Trump’s order does not outright ban the use of labor-management councils.

“OPM believes the establishment of labor-management forums and use of pre-decisional involvement can be beneficial and useful to agencies and labor unions,” McGettigan wrote. “Therefore, if an agency believes establishment of these forums or use of pre-decisional involvement will be productive and elects to use them or some version of them, the agency is encouraged to do so.”

McGettigan also rescinded OPM requirements that agencies must submit a report to the agency proving that the benefits for a labor-management forum have outweighed its costs.

National Treasury Employees Union National President Tony Reardon applauded the news that OPM would allow agencies to reinstate labor-management forums, although he continues to support presidential action requiring them to do so.

“NTEU is pleased that federal agencies are being encouraged to rebuild relationships with their employees and their unions, including through labor-management forums, where frontline federal employees, their representatives and their managers can collaborate on ways to improve the federal workplace,” he said. “We agree with the Office of Personnel Management’s statement that such forums can be ‘beneficial and useful,’ which is why we support the full revocation of former president Trump’s executive order 13812 that abolished the labor-management forums created during former President Obama’s term.”

But Everett Kelley, national president of the American Federation of Government Employees, criticized the Biden administration for what he saw as giving agencies the ability to avoid collaboration.

"We're surprised that the administration is giving permission to agencies to refuse to work cooperatively with their unions," he said. "We will have to address this at the bargaining table, where we will certainly urge all agencies to exercise their discretion to engage with us around pre-decisional involvement."

Robert Tobias, distinguished practitioner in residence at American University’s Key Executive Leadership Program and a former president of NTEU, said it is not uncommon for administrations to take several months to establish labor-management councils. Clinton’s executive order on the subject came out in October 1993, while Obama’s was published in December 2009.

Tobias said the forums could be a primary means for unions and management to rebuild relationships after the scorched earth tactics of the Trump administration.

“Originally, bargaining meant problem solving, but because of history it has been mostly adversarial, so the connotation for formal bargaining is adversarial,” he said. “And so, to move it out of that construct I think it’s necessary to create something more neutral like labor-management forums, and they worked in the Clinton administration and to a lesser extent in the Obama administration. It was a structure in place to engage in collaborative efforts, so I hope they move forward and, more than encourage, demand the creation of these forums.”