OPM clarifies that agencies should not violate court orders to terminate union contracts

The Office of Personnel Management clarified this week that a recent memo instructing agencies to push forward with the termination contracts with federal employee unions was not intended to encourage violating court orders blocking two executive orders excising labor from much of the federal government.

Last year, President Trump signed a pair of executive orders citing a seldom-used provision of the 1978 Civil Service Reform Act to ban unions at most agencies under the auspices of national security, effectively stripping two-thirds of the federal workforce of their collective bargaining rights. Though most agencies implicated in the two edicts terminated their contracts last summer, a smattering of agencies still recognize their workforces’ labor representatives due to court orders temporarily barring the orders’ implementation.

But in a memo to agency heads last week, OPM Director Scott Kupor noted that while in some instances the orders’ implementation has been delayed, at least in part due to litigation, and instructed those agencies to move forward with terminating their collective bargaining agreements with unions. This raised the hackles of unions whose status in the federal workplace had thus far been protected by federal judges, with the National Treasury Employees Union going so far as to informing appellate judges hearing their lawsuit challenging the executive orders of the document.

OPM on Tuesday revised the document to include language clarifying that agencies subject to a court order preventing their implementation of the anti-union edicts should continue to abide by the judges’ decisions.

“This guidance does not apply to bargaining units where there is a currently-applicable court order preventing implementation of the executive orders with respect to those units,” Kupor wrote.

An OPM spokesperson declined to provide information about how many agencies named in the executive orders had refrained from terminating their collective bargaining agreements for reasons other than a court order, directing Government Executive to poll each individual agency.

In its filing last week, NTEU also cited contract termination template accompanying Kupor’s memo instructing agencies to begin filing decertification and unit clarification petitions with the Federal Labor Relations Authority because they are “no longer subject to” federal sector labor law as part of its argument that it cannot pursue its claims administratively prior to filing a lawsuit.

“NTEU has maintained that the statute’s review scheme is not available because the executive order has excluded the defendant agencies—albeit improperly—from the statute’s coverage,” the union wrote. “The template termination notice validates NTEU’s position: it states explicitly that ‘the provisions of the FSLMRS no longer apply’ to the agencies named in the executive order.”

But in its own filing before the U.S. Court of Appeals for the D.C. Circuit, the Justice Department said unions could simply challenge any filings agencies made with the FLRA and argue the underlying orders were invalid then.

“The OPM guidance proceeds on the premise, consistent with the government’s position in this litigation, that the executive order is lawful, and that therefore the provisions of the [federal sector labor-management relations statute] no longer apply to the agencies and subdivisions named in that order,” the administration wrote. “But the guidance does not suggest that the executive order has eliminated the channels by which a union could challenge the order’s validity before the FLRA.”