Fedweek

Federal employee unions have praised President Biden’s repeal of four key executive orders on federal workplace matters—on bargaining, official time, disciplinary policies and Schedule F—but the full impact may not be clear for some time.

The NTEU union for example said that “Taken together, those four orders were an existential threat to our civil service because they put us on the path backward to the spoils system and diminished the ability of federal employees to have a meaningful voice in the workplace.” And the AFGE union said that “Federal workers can once again have confidence in their president’s commitment to the apolitical civil service, to standing up for workers’ rights, and to upholding merit system principles that safeguard against political interference in employment decisions.”

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One complication in Biden’s actions, though, is that the provisions of the order on disciplinary policies have been finalized as rules, which would apparently require further rule-making to repeal. Also, one part of those rules—involving mandatory discipline of supervisors who retaliate against whistleblowers—reflects a provision of a 2017 law and could be reversed only by a change in law. That policy change, which had bipartisan backing, may well be left alone.

The Trump order creating an excepted service Schedule F for positions involved in policy and confidential advice was not carried out, to the extent that there have been no reports of positions being converted. However, OPM and OMB at least apparently did complete assessments of positions that could be subject to such a conversion, if a future administration were to succeed in putting such a policy into effect.

A lawsuit over that order likely will now be dismissed on grounds that there no longer is a threat of actual harm to anyone, meaning the Trump order’s legality will go undecided. Legislation has been offered in Congress to broaden the law to prevent any such move in the future.

Also to be decided is the fate of contracts that took effect between late 2019, when a court injunction against the bargaining order was lifted, and Biden’s action—specifically whether those contracts will now be reopened for new bargaining. Many of those contracts contain more restrictive provisions than earlier ones on matters such as official time and union input into decisions such as work scheduling.

The NTEU for example argues that such contracts should be reopened, saying that “We believe President Biden’s new orders provide clear direction for labor relations officials at federal agencies to reverse course and, where necessary, return to the table to bargain in good faith with their employees as the law requires. In those cases where agencies used the Trump orders to take away employee or union rights, the damage can and should be undone immediately.”

Also, in repealing one of the orders on bargaining, Biden effectively reversed the government’s position on bargaining over topics that are negotiable at management’s discretion under the Civil Service Reform Act, such as the assignment of employees or use of resources for a function. Trump’s order had told agencies that they could not negotiate over such matters, while Biden has now told agencies that they must negotiate over them.

In doing so, Biden is calling for a return to a policy that was attempted by the Obama administration—and the Clinton administration before that. However, in both prior cases, unions considered agency compliance to be mixed at best.

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Unions also are looking to Biden to set up a labor-management cooperative program of the sort that was established by the Clinton administration, canceled by the Bush administration, reestablished by the Obama administration, and then canceled again by the Trump administration. Such programs have advocated greater union involvement in agency decisions outside the formal bargaining realm. Their effectiveness also was considered to be mixed, however.

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