OPM Guidance on Labor and Employee Relations Executive Orders

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By on July 6, 2018 in Human Resources with 0 Comments

Stack of five books on a wooden desk next to a coffee cup in an office setting labeled 'compliance', 'policies', 'law', 'regulations', 'standards'

In an interesting development, the U.S. Office of Personnel Management (OPM), on July 5, issued its guidance on President Trump’s Executive Orders dealing with the way Agency management deals with unions and problem employees.

Guidance Issued on Human Capital Officer’s Website

What is interesting is that the announcement was made using the Chief Human Capital Officer’s (frequently referred to as the Chicos) website transmittals area when the addressees were heads of Executive Departments and Agencies—not Chicos. The guidance is actually pretty hard to find as it wasn’t announced in OPM news reports but merely listed as the latest issuances on the Transmittals page of the Chicos’ website.

OPM Guidance for Each Executive Order

Each Executive Order is listed separately and includes at least a deadline page (at the bottom of the guidance).

The Guidance for Implementation of Executive Order 13837 – Ensuring Transparency, Accountability, and Efficiency in Taxpayer-Funded Union Time Use only has the deadlines list file, while the others include information as reported below.

The Guidance for Implementation of Executive Order 13836 – Developing Efficient, Effective, and Cost-Reducing Approaches to Federal Sector Collective Bargaining includes forms for Agency nominations to the Interagency Labor Relations Group; notifying OPM of who will be the Group’s Point of Contact; a template for reporting required data to the President; and the deadlines.

The Guidance for Implementation of Executive Order 13839 – Promoting Accountability and Streamlining Removal Procedures Consistent with Merit System Principles includes a data collection form and the deadlines.

The EO 13837 guidance (my shortening to The Taxpayer Funded Union Time Use EO) does a little this is what the President meant verbiage but mostly tracks the Order and sets reporting requirements on Agencies. There’s some strong wording under the section titled Preventing Unlawful or Unauthorized Expenditures.

The EO 13836 guidance (I’m shortening this one to The Cost-Cutting Bargaining EO) is mostly about setting up the Interagency Labor Relations Working Group (LRG). It lists the initial functions of the LRG and reporting requirements for existing CBOs.

The Executive Order 13839 guidance (Shortened to The Fire’em Fast but Right EO) largely tracks the order but addresses data collection requirements and addresses the policy in all of the EOs of not imposing requirements on a Collective Bargaining Agreement currently in effect.

I don’t know about you, but I still have a ton of questions I’d like to see answered. Since I don’t work at an Agency headquarters, it appears we’ll have to see how it works out. Only those folks can ask OPM.

The Union Response

FEDweek reports that the Federal District Court for DC will hold a hearing on July 25 to hear the motion of the thirteen unions representing Federal employees to block implementation of the orders.

The union filing has a very interesting lead in:

“Defendant Trump has no authority to issue these Executive Orders from either the Constitution itself or from Congress. To the degree the President has such authority, portions of the Executive Orders are plainly unlawful as they conflict with, or seek to impermissibly rewrite portions of, the FSLMR Statute, without authority from Congress. Therefore, the Executive Orders must be declared invalid and a permanent injunction issued to prohibit their implementation.”

Now, as you all know, I’m not a lawyer, but did they say he has no authority in the first sentence and then went on to say “to the extent he has such authority…” in the second? Then keep going on in the third sentence to say that if he has the authority, having exercised it is illegal.

If Justice Antonin Scalia was right when he said, “The main business of a lawyer is to take the romance, the mystery, the irony, the ambiguity out of everything he touches”, these unions really need a lawyer.

Of course, there’s an administrative remedy for their claim under the very statute they claim the President violated. If you go to 5 U.S. Code § 7105 (a), you can read the following:

(2) The Authority shall, to the extent provided in this chapter and in accordance with regulations prescribed by the Authority—(E) Resolve(s) issues relating to the duty to bargain in good faith under section 7117(c) of this title…

I guess we’ll see whether the judge sends them to get their administrative remedy first before they darken his door again. Oh, I almost forgot. If they don’t like an Authority decision, they have to go to the DC Circuit Court of Appeals not the District Court.

If you were the Judge, would you wade into all this or tell them to go follow the statute they are claiming the President violated and file something with the Federal Labor Relations Authority?

Some of the above represents my opinions. In no case do any of my opinions reflect the views of anybody but me.

© 2018 Bob Gilson. All rights reserved. This article may not be reproduced without express written consent from Bob Gilson.

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About the Author

Bob Gilson is a consultant with a specialty in working with and training Federal agencies to resolve employee problems at all levels. A retired agency labor and employee relations director, Bob has authored or co-authored a number of books dealing with Federal issues and also conducts training seminars.

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