Federal Manager's Daily Report

The White House is seeking to reverse an "anomaly" whereby labor contract provisions have precedence over laws or regulations enacted after the fact.

The Trump administration wants Congress to change what it calls an “anomaly” in federal labor-management law that says is “detrimental to efficient and effective government” – a change that federal unions and their allies in Congress likely will oppose as an erosion of that law rather than a correction of it.

The provision at issue makes it an unfair labor practice to enforce a rule or regulation “which is in conflict with any applicable collective bargaining agreement if that agreement was in effect before the date the rule or regulation was prescribed.”

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That means, a budget document says, that “government-wide regulations, including OPM’s personnel regulations relating to such subjects as discipline, performance management, and leave, among many other topics, may not be enforced when an existing collective bargaining agreement covering a particular bargaining unit conflicts with the intervening regulation.”

It continues: “Government-wide regulations are promulgated to achieve government-wide uniformity in interpreting and implementing the underlying statute. Permitting agencies and unions to preempt the comprehensive scope of these regulations by agreement during the life of their contract wittingly or unwittingly creates incongruences among agencies and often within agencies for a number of years. Because agencies’ authority to promulgate government-wide regulations have their source in statute and executive order, the current statutory provision has the effect of permitting local agreements to preempt the authority to interpret and apply statutes through regulation that are authorized or mandated by law.”

The request comes as the administration is working to finalize regulations, currently in draft form, to carry out 2018 executive orders to strengthen management’s hand in disciplinary and union-related matters. Guidance on those orders has said that existing contracts must be honored while they remain in effect.

However, unions have complained – both publicly and through formal appeals – that agencies are not doing so.

Many Democrats in Congress have supported them on that issue and others related to the administration’s labor policies, making it doubtful that the Democratic-controlled House would agree to the proposed change in law once the administration formally sends it to Capitol Hill.

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