Fedweek

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OPM has emphasized to agencies that a court ruling blocked only parts of three intertwined executive orders on union and disciplinary matters and that “all other provisions of the orders remain in full effect.”

“Agencies are encouraged to carefully review the still-operative provisions [of those orders] and to exercise their independent judgment in deciding how best to pursue these policies through collective bargaining,” a memo says from acting director Margaret Weichert says.

A prior memo from her predecessor just after the court ruled in late August told agencies to stop enforcing the parts of the orders that were enjoined. The administration has appealed that ruling, but the new memo emphasizes for example one of those orders “continues to provide important guidance to agencies engaged in collective bargaining, and those portions of the order that are not currently enjoined remain in effect.”

It cites the order’s policies that agencies are to seek contracts that: “promote an effective and efficient means of accomplishing agency missions; encourage the highest levels of employee performance and ethical conduct; ensure employees are accountable for their conduct and performance on the job; expand agency flexibility to address operational needs; reduce the cost of agency operations, including with respect to the use of taxpayer-funded union time; are consistent with applicable laws, rules, and regulations; do not cover matters that are not, by law, subject to bargaining; and preserve management rights.”

Other policies of the order that remain in effect, she added, include a goal of completing negotiations within a year and invoking mediation or filing unfair labor practice charges against a union that an agency believes is delaying or otherwise not bargaining in good faith. Agencies are to bargain in good faith but they “retain the authority to draft proposals and take positions during bargaining that are consistent with law and arrived at using independent judgment, taking into account agency-specific circumstances.”

She also stressed that provisions still in effect from that order and a second order set positions for agencies to take in bargaining including limiting opportunities for employees to show improvement before being disciplined on performance grounds, not committing to using progressive discipline, and limiting union official time to amounts “amounts that are reasonable, necessary, and in the public interest.”

Federal unions and some members of Congress have asserted that some agencies are continuing to pursue the barred policies regardless of the court order—an issue that likely will come before Congress next year with Democrats controlling the House.