The memo tells agencies to refuse to negotiate on topics that fall under management discretion such as the numbers, types and grades of employees or positions assigned to any organizational subdivision, and methods and means of performing work. Image: Naypong Studio/Shutterstock.com
By: FEDweek StaffOPM has told agencies to “return to the policies of the first Trump administration”—which the Biden administration had revoked—regarding disciplinary practices and bargaining with federal unions.
A memo on chcoc.gov notes that a Trump order last month titled Restoring Accountability to Policy-Influencing Positions Within the Federal Workforce revoked a Biden administration executive order titled Protecting the Federal Workforce. That Biden order had revoked three 2018 orders that had formed the backbone of the first Trump administration’s federal personnel policy.
Among numerous other provisions, those three orders had said that when taking disciplinary action based on conduct, they need not follow principles of progressive discipline and need not take the same action in a given case that they took in a prior similar case. Agencies further were discouraged from using tables of discipline, told to consider an employee’s entire disciplinary and work record when deciding on a penalty, and told not to require that an employee have previously been suspended or demoted before a proposing official may propose removal.
In performance cases, agencies were told that they need not take any steps beyond a minimum requirement in law to assist employees in improving performance deemed unacceptable before they are subject to disciplinary action. Further, they were told that the nature of assistance provided is in an agency’s sole discretion and that such periods should generally last no more than 30 days.
The union-related provisions set included that agencies were not to: bargain over matters that are negotiable at management’s discretion under civil service law; make firing for performance or conduct reasons subject to a grievance/arbitration process; or restrict management’s authority over various aspects of performance evaluations or the length of a performance improvement period before taking disciplinary action.
Says the memo, “The revocation of [Biden’s] order does not immediately reinstate those orders. However, in light of Restoring Accountability, agencies should return to the policies of the first Trump Administration on discipline and unacceptable performance, as soon as practicable.”
Agencies are to review actions they took under the Biden order to change or end policies they had imposed under the three Trump orders, and change or end them in turn. They are to report to OPM on such steps by March 7, along with steps under another section of the memo that is yet another reversal of policy over what topics are negotiable.
Under federal labor relations law, certain topics are always negotiable, others are 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 order telling agencies to negotiate in those areas was lifted by the Bush administration, reimposed by the Obama administration, lifted again by the first Trump administration, reimposed again by the Biden administration, and now has been lifted again.
The memo tells agencies to refuse to negotiate in those areas moving forward, to examine existing contracts for clauses obligating them bargain over them, and to “engage impacted unions, as soon as practicable, to suspend, revise, or rescind” any such language.
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