Fedweek

In guidance to agencies, OPM has said that President Trump’s recent three executive orders do not “abrogate provisions of existing collective bargaining agreements . . . to the extent that the current CBA is still in effect (having not expired or reached the end of a current term) or a CBA does not contain a reopener provision permitting the EO to be immediately effective during the term of an agreement.”

In several places in its guidance on the orders, OPM stressed that executive orders “possess the force of government-wide rules” and that if an existing labor-management contract contains contrary provisions, the order becomes effective on the date the contract “expires or rolls over, whether or not the [contract] is reopened for negotiations.”

The traditional practice has been that if negotiations for a new contract are still underway when one ends—a common occurrence—the old contract remains in effect unless and until the new one changes them.

Unless they are blocked in a pending legal challenge brought by unions, the orders thus could trigger widespread and contentious bargaining as agencies seek to bring contracts into compliance. When that process would begin would vary among the hundreds of contracts currently in effect.

In any such bargaining, the guidance stresses that effective as of Monday (July 9) agencies must take certain positions, including that grievance and binding arbitration procedures are no longer to apply to firing on either conduct or performance grounds (the right to appeal such firings to the MSPB would not be affected, however). Agencies also are not to subject disputes over the assignment of ratings of record and awards of any form of incentive pay to grievance/arbitration, although “such matters may still be covered by internal agency administrative grievance procedures.”

Further, agencies are not to consent to: go beyond minimal requirements for performance improvement periods before taking discipline based on performance; adhere to principles of “progressive” discipline when choosing penalties; impose a suspension before proposing an employee’s removal “if facts and circumstances warrant the proposal of a removal”; or bargain over matters that are negotiable only at management’s discretion.

Unions are certain to resist such terms and such talks could quickly hit deadlock. In that case, OPM encouraged agencies to “promptly” invoke the Federal Mediation and Conciliation Service and the Federal Service Impasses Panel, and to file an unfair labor practice complaint against the union claiming it is not negotiating in good faith.

“Evidence of failure to engage in good faith bargaining includes refusal to meet to bargain, refusal to meet as frequently as necessary, refusal to submit proposals or counterproposals, undue delays in bargaining, undue delays in submission of proposals or counterproposals, inadequate preparation for bargaining, and other conduct that constitutes bad-faith negotiating,” OPM said.