Federal agencies have been told to bargain “in good faith with the objective of reaching an agreement” with the union on subjects that are negotiable at management’s discretion under federal workplace labor law, the latest in a back and forth series of changes that mirror party control of the White House.
Under federal labor law, certain topics are always negotiable, others never negotiable and others are negotiable at management’s discretion—the so-called “(b)(1)” topics, for the section of law in which they are found. They include the numbers, types and grades of employees or positions assigned to any organizational subdivision, work project, or tour of duty, and the technology, methods and means of performing work.
A Clinton administration directive that agencies must negotiate in those areas as a matter of policy was lifted by the Bush administration, reimposed by the Obama administration, and lifted again by the Trump administration—which further explicitly banned negotiations on those topics as a matter of policy. A Biden administration executive order in turn reinstated a requirement for negotiations.
Agencies “shall agree” to negotiate over those topics “whether at the union’s request (e.g. midterm bargaining request) or as the result of a proposed agency action (e.g. union responding to an agency notice of a pending change subject to collective bargaining),” says OPM guidance on the Biden order.
“A failure by agency managers to engage in bargaining over the subjects covered by 5 U.S.C. 7106(b)(1) would be inconsistent with the president’s directive. Therefore, in order to carry out the policy decision of the president reflected in the EO, agencies must commence bargaining in good faith over all of these subjects,” it says.
It says that if parties cannot reach a negotiated agreement, either may invoke the Federal Mediation and Conciliation Service, if no agreement is reached there to an arbitrator or the Federal Service Impasses Panel, and an agency may not refuse to comply with an FSIP order simply because it involves a discretionary topic.
It adds: “Because bargaining over these subjects has most recently been at the discretion of the agency, it may be a new experience for some management and union representatives, and OPM is available to provide technical assistance to support implementation of this policy.”
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