Federal Manager's Daily Report

President Trump’s executive orders on federal employee discipline and union matters could trigger renegotiation of a significant number of contracts and other labor-management agreements.

The order on disciplinary policies (E.O. 13839) for example tells agencies to “renegotiate, as applicable, any collective bargaining agreement provisions that are inconsistent with any part of this order or any final OPM regulations promulgated pursuant to this order.”

Major issues potentially would include the directive to exclude from negotiated grievance procedures management decisions to fire an employee for misconduct or unacceptable performance; the assignment of ratings, awards based on ratings or certain other forms of incentives such as recruitment or retention payments; the use of performance improvement periods before discipline on performance grounds; or management’s discretion to use conduct-based disciplinary charges, which carry a lower burden of proof for the agency, in performance-related cases.

A separate order (E.O. 13837) restricting negotiated “official time”–on-the-clock time for employees with union roles to perform certain union duties–tells agencies that if their contracts conflict with the new policies, they are to notify unions of their “intent to alter the terms of such agreement and either reopen negotiations and negotiate to obtain provisions consistent with this order, or subsequently terminate such provision and implement the requirements of this order.”

It’s uncertain how long all that might take, especially given the union resistance to virtually every directive in the orders. However, one of the orders says that renegotiations generally should not last longer than a year. Also, agencies were told to promptly invoke outside parties such as the Federal Service Impasses Panel and to file unfair labor practice charges against unions, and even to impose management’s position as binding policy, to speed things along.

In addition, the order (E.O. 13836) on bargaining in general tells agencies not to negotiate over matters that are “discretionary” for bargaining, which generally involve assignments of employees and use of resources for a task. However, the order does not specifically require agencies to renegotiate clauses affecting those matters out of existing contracts. The Obama administration had told agencies to bargain on those matters.