President Trump has told agencies to “adhere to the terms” of bargaining agreements they reached with unions during the more than a year that a recently lifted court injunction against parts of three May 2018 executive orders was in effect, even if portions of those contracts are contrary to those orders.
The memo is the latest of a series of guidance to agencies in the wake of the end of a court injunction that had been imposed in late August of last year and was in effect until two weeks ago when a federal appeals court lifted it, based on its ruling that the dispute should have gone first to the FLRA.
Provisions of the orders that had been barred by the injunction among other things set goals for agencies to pursue during bargaining—including on matters such as official time, disciplinary policies, grievance rights and the length of negotiations—and directed agencies to refuse to bargain over topics that are negotiable at management’s discretion under federal labor-management law—such as how many and which types of employees to assign to a task and how it is carried out.
The orders “recognized agencies’ ability to comply with collective bargaining agreements containing prohibited terms so long as such agreements were effective on the date of the executive orders,” says the presidential memo, reflecting a recent OPM memo reinstating guidance to that effect that OPM had issued after the orders were issued but before the injunction took effect.
Says the latest memo, “While the district court’s injunction remained in effect, agencies retained the ability to bargain over subjects covered by the enjoined provisions. The executive orders, however, did not address collective bargaining agreements entered into during this period. As a result, it is necessary to clarify agencies’ obligations with respect to such collective bargaining agreements.”
It says that if contracts negotiated during the period the injunction was in effect contain “specific terms prohibited by the executive orders, an agency may execute the new collective bargaining agreement containing such terms, and terms ancillary to those specific terms, notwithstanding the executive orders. To the extent it is necessary, this memorandum should be construed to amend” those orders.
However, it adds that “agencies that remain engaged in collective bargaining negotiations, to the extent consistent with law, shall comply with the terms of the executive orders.”