Federal Manager's Daily Report

The AFGE union has said it expects that President Biden’s executive order telling agencies to bargain over topics that are negotiable at management’s discretion under federal labor law will result in broader bargaining than was the case after similar initiatives by the Clinton and Obama administrations.

Like the prior two, the current administration’s directive orders agencies to bargain on so-called “(b)(1)” topics—named 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.

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The prior two initiatives produced only mixed results, however. A posting by the AFGE union notes that federal courts “found the agencies were allowed to refuse to bargain b(1) subjects” despite Clinton’s order. Obama’s order, it said, “was less ambitious than Clinton’s, offering scant encouragement that resulted in very little b(1) bargaining.”

Each was canceled in turn by the Republican administration that followed.

OPM guidance on the Biden order told agencies that they “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.”

Said the posting, “We have our strongest b(1) bargaining EO yet in this executive order and can expect to bargain b(1) more often now. Expect to propose, bargain and get b(1) gains. The Biden EO is in our favor.”

It added: “If agencies are not complying, a political nudge is preferred over an unfair labor practice complaint due to its long process. Include the EO language in your contract since it will be consulted by everyone even though others may interpret it differently.”

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