Talks are likely to reach a deadlock and a number of negotiability disputes and unfair labor practice complaints already are pending before the FLRA.

Bargaining between federal agencies and unions over workplace matters could turn even more contentious now that an injunction against parts of White House policies has been lifted, although the possibility of reaching negotiated contracts still remains.

Bargaining would be required as agencies seek to put the terms of the executive orders in place as current contracts expire. In some cases that already had begun despite the injunction, with agencies saying they are taking such positions based on their own judgment, not based on the orders.


Said OPM’s new memo, “This principle remains in effect as this is a right afforded agencies pursuant to the Federal Service Labor-Management Relations Statute. Reinstatement of the previously enjoined portions of the EOs may provide an additional basis for agencies to continue ongoing pursuit of agency-specific goals through the collective bargaining process.”

Experience has shown that the unions resist such terms and talks hit a deadlock; a number of negotiability disputes and unfair labor practice complaints already are pending before the FLRA.

In the latest of such disputes, an arbitrator held that HHS had bargained in bad faith with the NTEU union by imposing provisions that among other things would allow management to scale back telework and alternative work schedules and deny more leave requests. The Federal Service Impasses Panel—an arm of the FLRA—previously had sided with management on some two dozen disputed provisions while sending six others back to the bargaining table. NTEU has called on the department to resume negotiations in light of the arbitrator’s decision (which management could appeal, leaving the FSIP ruling in place for the meantime).

Meanwhile the VA has notified the AFGE union, currently involved in negotiations over a new national contract, that it intends to change prior policies on matters including provision by the agency to the union of office space, equipment, IT services, parking spaces and official time.

However, the AFGE and the SSA meanwhile agreed to a six-year negotiated contract covering some 45,000 employees following a similar dispute that also had ended up before the impasses panel and that also had resulted in a ruling largely in favor of management. The terms were described as less favorable to the union than the prior contract’s—but more favorable than management’s position or terms of the FSIP decision—on matters such as official time, grievance rights, performance improvement periods and free use by the union of agency office space.