A new version of the proposed executive order titled “Creating Labor-Management Forums to Improve Delivery of Government Services” is out for review and comment.
The new version has a couple of substantial changes from the old including elimination of the obligation to bargain permissive subjects contained in Clinton Order and previous versions of the Obama plan. You can see a comparison of the Clinton Order, the previous and new drafts of the proposed Obama order here.
- Two year terms for the National Council on Federal Labor Relations’ members in line with the Clinton Order
- Dropping the requirement to bargain in the permissive area (5 U.S.C. §7106(B)(1)) and replacing it with “several pilot programs within the Executive branch, described in Section 3 of this order, for bargaining over subjects set forth in 5 U.S.C. § 7106(b)(1).”
- Encouraged “training of agency personnel in methods of dispute resolution and cooperative methods of labor-management relations”.
- Designation of OMB’s Director to co-chair with the Director of OPM.
- “make a good faith attempt to resolve issues concerning proposed changes in conditions of employment, including those involving the subjects set forth in 5 U.S.C. § 7106(b)(1), through discussions in their labor-management forums”.
- “Nothing in this order shall be construed to impair or otherwise affect the authority granted by law to an executive department, agency, or the head thereof; or functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals.”
- “This order shall be implemented consistent with applicable law and subject to the availability of appropriations.”
- “This order is intended only to improve the internal management of the executive branch and is not intended to, and does not, create any right to administrative or judicial review, or any other right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.”
- Extended time limits for submitting, approving and implementing the Agency plans to make the terms of the Order effective.
What’s It All Mean?
There are some inferences that may be made from the new version:
- The White House has been tipped off that bargaining in the permissive area might not be the great idea the union’s claim. It failed under Clinton so why should it succeed under Obama?
- The White House is getting more sophisticated in how the government works, i.e., how long things take, what language needs to be used, etc.
- The White House may have figured out that the version offered by the unions wasn’t necessarily in its overall or broader interests.
- The White House has come to understand the complexity of messing with the civil service and wants to step lightly until all the implications are clear.
It’s a better Order. It’s more balanced and recognizes that many interests exist within and among Agencies. If one assumes that a debt was owed Federal unions (a matter of some doubt), this is a bow in that direction as opposed to groveling.
As always, my views are mine and do not reflect those I work with or for. By the way, the comparison chart is dedicated to Mark Roth who was kind enough to compliment the earlier one.
Draft Executive Order
Draft 10/1/09; 9:30am
CREATING LABOR-MANAGEMENT FORUMS TO IMPROVE DELIVERY OF GOVERNMENT SERVICES
Federal employees and their union representatives are an essential source of front-line ideas and information about the realities of delivering government services to the American people. A non-adversarial forum for managers, employees, and employees’ union representatives to proactively discuss government operations will facilitate the design and implementation of changes to promote satisfactory labor relations and improve productivity and effectiveness in the Federal Government. Labor-Management Forums, as complements to the existing collective bargaining process, will allow managers and employees to collaboratively champion change in the Federal Government so that agencies can deliver the highest quality services to the American people.
By the authority vested in me as President by the Constitution and the laws of the United States, and in order to establish a cooperative and productive form of labor-management relations throughout the Executive Branch, it is hereby ordered:
Section 1. The National Council on Federal Labor Relations
(a) Establishment and Membership
There is established the National Council on Federal Labor Relations (“Council”). The Council shall comprise the following members:
(1) Director of the Office of Personnel Management (“OPM”);
(2) Deputy Director for Management, Office of Management and Budget (“OMB”);
(3) Chair, Federal Labor Relations Authority;
(4) President, American Federation of Government Employees, AFL- CIO;
(5) President, National Federation of Federal Employees;
(6) President, National Treasury Employees Union;
(7) President, International Federation of Professional and Technical Engineers, AFL-CIO;
(8) The heads of two other labor unions that represent federal employees and are not otherwise represented on the Council;
(9) A deputy Secretary or other officer with department- or agency-wide authority
from four executive departments or agencies (hereafter collectively “agency”),
not otherwise represented on the Council;
(10) President, Senior Executives Association; and
(11) President, Federal Managers Association.
Members shall have 2-year terms on the Council, which may be extended by the President.
(b) Responsibilities and Functions
The Council shall advise the President on matters involving labor-management relations in the executive branch. Its activities shall include:
(1) supporting the creation of agency level labor-management forums and promoting partnership efforts between labor and management in the executive branch, to the extent permitted by law;
(2) collecting and disseminating information about, and providing guidance on labor-management improvement efforts in the executive branch, including results achieved, to the extent permitted by law;
(3) utilizing the expertise of individuals both within and outside the Federal Government to foster successful labor-management relations, including through training of agency personnel in methods of dispute resolution and cooperative methods of labor-management relations; and
(4) providing recommendations to the President for implementation of several pilot programs within the Executive branch, described in Section 3 of this order, for bargaining over subjects set forth in 5 U.S.C. § 7106(b)(1).
(1) The President shall designate the Director of OPM and the Deputy Director for Management at OMB to serve as Co-Chairs of the Council. The Co-Chairs shall convene and preside at meetings of the Council, determine its agenda, and direct its work.
(2) The Council shall seek input from nonmember Federal agencies, particularly smaller agencies. It also may, from time to time, invite persons from the private and public sectors to submit information. The Council shall also seek input from Federal manager and professional associations, companies, nonprofit organizations, State and local governments, Federal employees, and customers of Federal services, as needed.
(3) To the extent permitted by law and subject to the availability of appropriations, OPM shall provide such facilities, support, and administrative services to the Council as the Director of OPM deems appropriate.
(4) Members of the Council shall serve without compensation for their work on the Council, but may be allowed travel expenses, including per diem in lieu of subsistence, as authorized by law for persons serving intermittently in Government service (5 U.S.C. 5701-5707), consistent with the availability of funds.
(5) All agencies shall, to the extent permitted by law, provide to the Council such assistance, information, and advice as the Council may request.
(6) Insofar as the Federal Advisory Committee Act, as amended (5 U.S.C. App.), may apply to the Council, any functions of the President under that Act, except that of reporting to the Congress, shall be performed by the Director of OPM in accordance with the guidelines that have been issued by the Administrator of General Services.
Sec. 2. Implementation of Labor-Management Forums Throughout the Executive Branch.
(a) The head of each agency that is subject to the provisions of chapter 71 of title 5, United States Code, or any other authority permitting employees of such agency to select an exclusive representative, shall:
(1) establish agency level labor-management forums by creating labor-management committees or councils at appropriate levels, or adapting existing councils or committees if such groups exist, to help reform Government;
(2) proactively involve employees and their union representatives as full partners with management representatives to identify problems and craft solutions to better serve the agency’s customers and mission;
(3) allow employees and their union representatives pre-decisional involvement on matters affecting conditions of employment to the fullest extent practicable, without regard to whether those matters are negotiable subjects of bargaining under 5 U.S.C. § 7106, provide adequate information on such matters expeditiously to union representatives where not prohibited by law, and make a good faith attempt to resolve issues concerning proposed changes in conditions of employment, including those involving the subjects set forth in 5 U.S.C. § 7106(b)(1), through discussions in their labor-management forums; and
(4) evaluate and document, consistent with the spirit of this order and any further guidance provided by the Council, progress and improvements in employee satisfaction and organizational performance resulting from the labor-management forums.
(b) Pursuant to Section 2(a)(4) of this order, each head of an executive department or agency shall submit for approval, within 120 days, a written implementation plan to the Council. The plan shall:
(1) describe how the executive department or agency will conduct a baseline survey of employees and managers engaged in bargaining to assess the current state of labor relations within the department or agency;
(2) address how the executive department or agency will develop department-, agency- and/or bargaining unit-specific metrics to monitor improvements in areas such as labor-management satisfaction, productivity gains, cost savings, and other measures as identified by the relevant labor-management forums participants;
(3) report the extent to which the executive department or agency has established labor-management forums, as set forth in Section 2(a)(1) of this order, or may participate in the pilot projects described in Section 3 of this order; and
(4) explain the executive department’s or agency’s plan for devoting sufficient resources to provide annual reports to the Council pursuant to Section 2(a)(4) of this Order.
The Council shall review each Federal department or agency implementation plan within 30 days of receipt to certify that the plan satisfies all requirements of this order. Plans that are determined to be insufficient will be returned to the Federal department or agency with guidance for improvement and resubmission within 30 days. Each Federal department or agency must have a certified implementation plan in place no later than 180 days after the date of this Order.
Sec. 3. Negotiation over Permissive Subjects of Bargaining.
The Council shall recommend to the President a plan to establish and evaluate the impact of several pilot projects of specified duration in the Executive branch in which some Federal departments or agencies shall elect to bargain over some or all of the subjects set forth at 5 U.S.C. § 7106(b)(1), up through and including completion of the impasse procedures set forth at 5 U.S.C. § 7119. The plan shall include recommendations for evaluating such pilot projects on the basis, among other things, of their impacts on organizational performance, employee satisfaction, and labor relations of the affected departments or agencies. The plan shall also recommend methods for evaluating the effectiveness of dispute resolution procedures adopted and followed in the course of the pilot projects.
Sec. 4. General Provisions.
(a) Nothing in this order shall abrogate any collective bargaining agreements in effect on the date of this order.
(b) Nothing in this order shall be construed to impair or otherwise affect:
(i) authority granted by law to an executive department, agency, or the head thereof; or
(ii) functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals.
(c) This order shall be implemented consistent with applicable law and subject to the availability of appropriations.
(d) This order is intended only to improve the internal management of the executive branch and is not intended to, and does not, create any right to administrative or judicial review, or any other right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.
THE WHITE HOUSE,