Issue Briefs

Following is new OPM guidance to agencies on expunging four Trump administration executive orders that were revoked as one of the Biden administration’s first orders of business.


On January 22, 2021, President Biden signed Executive Order (EO) 14003 on Protecting the Federal Workforce (attached). Section 1 notes that “Career civil servants are the backbone of the Federal workforce” and that “[i]t is the policy of the United States to protect, empower and rebuild the career Federal workforce.” It further notes that “[i]t is also the policy of the United States to encourage union organizing and collective bargaining.” To advance these policy objectives, the EO revoked the following EOs:

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EO 13836 of May 25, 2018 – Developing Efficient, Effective, and Cost-Reducing Approaches to Federal Sector Collective Bargaining;

EO 13837 of May 25, 2018 – Ensuring Transparency, Accountability, and Efficiency in Taxpayer-Funded Union Time Use;

EO 13839 of May 25, 2018 – Promoting Accountability and Streamlining Removal Procedures Consistent with Merit System Principles; and

EO 13957 of October 21, 2020 – Creating Schedule F in the Excepted Service

All U.S. Office of Personnel Management (OPM) guidance documents issued pursuant to EOs 13836, 13837, 13839, and 13957 are hereby rescinded. See attached listing of rescinded OPM guidance.

Revocation of EO 13957 -Schedule F

Section 2(a) of EO 14003 revokes EO 13957. Section 2(b) provides that “the heads of all executive departments and agencies (agencies) shall, consistent with law, immediately suspend, revise, or rescind proposed actions, decisions, petitions, rules, regulations, or other guidance pursuant to, or to effectuate, Executive Order 13957.” It further provides that “[t]he Director of the Office of Personnel Management (OPM) shall immediately cease processing or granting any petitions that seek to convert positions to Schedule F or to create new positions in Schedule F.”

Agency actions to identify and establish Schedule F positions are to cease immediately. Agencies are to refrain from submitting to OPM any Schedule F list of positions already identified and should handle any materials related to Schedule F pursuant to statutes and regulations governing Federal records and any agency-specific policies governing materials related to revoked policies.

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(Questions about how to handle such records should be directed to the National Archives and Records Administration.)

OPM approvals of agency petitions to move positions to Schedule F are revoked. Any agency that received such an approval must cancel any actions taken based on OPM approval of the agency’s petition.

Revocation of EOs 13836, 13837, 13839 and Certain Presidential and Regulatory Actions

Section 3(a) of EO 14003 revokes EO 13836. It also disbands the Interagency Labor Relations Working Group (LRG). All materials issued by the LRG are hereby rescinded. See attached listing. Agencies retain the authority to draft proposals and take positions during collective bargaining that are consistent with law and arrived at using independent judgment, taking into account agency-specific circumstances and Executive Branch policy on collective bargaining.

Section 3(b) revokes EO 13837. Section 3(c) revokes EO 13839. Section 3(d) revokes the Presidential Memorandum of October 11, 2019 (EOs 13836, 13837 and 13839).

Direction to Heads of Agencies

Section 3(e) of EO 14003 directs heads of agencies whose practices were covered by EOs 13836, 13837, and 13839 (affected agencies) to review and identify existing agency actions related to or arising from those orders. Section 3(f) provides that “[t]he heads of agencies shall, as soon as practicable, suspend, revise, or publish for notice and comment proposed rules suspending, revising, or rescinding, the actions identified in the review” described in Section 3(e), “as appropriate and consistent with applicable law and the policy set forth in section 1” of the EO. This includes, but is not limited to, the following actions:

Actions taken pursuant to EO 13836 – Agency actions intended to implement any requirement of EO 13836 shall cease immediately. Affected agencies shall immediately stop implementation of EO 13836, as follows: Affected agencies shall, as appropriate and consistent with applicable law and the policy articulated in EO 14003, and as soon as practicable, suspend, revise or rescind the actions covered in any agency policies, if applicable, implementing requirements pursuant to EO 13836.

Affected agencies must withdraw any collective bargaining proposals in on-going collective bargaining which are intended to implement EO 13836 and, as necessary, draft proposals consistent with law, the policy articulated in EO 14003, and taking into account agency-specific circumstances, as appropriate. This includes any related matter currently pending before the Federal Mediation and Conciliation Service (FMCS) and the Federal Service Impasses Panel (FSIP).

To the extent affected agencies successfully renegotiated any CBA provisions intended to implement any requirements of EO 13836 (e.g. collective bargaining procedures, ground rules, permissive bargaining, etc.), agencies must identify those provisions and, as appropriate and consistent with applicable law and the policy articulated in EO 14003, engage impacted unions, as soon as practicable, to suspend, revise or rescind the actions covered in these CBA provisions. In carrying out this task, agencies should take a hard look at the degree to which, if any, EO 13836 influenced bargaining-table strategy and decision making. EO 14003 neither requires nor prohibits affected agencies from reopening CBAs on other matters not related to subjects covered by EO 13836.

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In addition, although agencies are no longer required to submit CBAs and arbitration decisions to the OPM CBA public database in accordance with Section 8 of EO 13836, OPM, under its own statutory and regulatory authority, is still requiring that agencies submit to OPM, within 10 days of issuance, any arbitration awards under 5 U.S.C. §7121(e ) and (f) relating to actions taken under Chapter 43 and Chapter 75, United States Code, for analysis in accordance with OPM’s authority under 5 U.S.C §7703(d). OPM also requires that other arbitration awards must be submitted within 30 days of issuance. Agencies should continue to provide OPM with copies of collective-bargaining agreements in the manner preceding issuance of EO 13836.

Actions related to the authorization of union time described in sections 4(b) and 5(b) of EO 13837 – Agency actions intended to implement sections 4(b) and 5(b) of EO 13837 shall cease immediately, including as follows: Affected agencies shall, as appropriate and consistent with applicable law and the policy articulated in EO 14003, and as soon as practicable, suspend, revise or rescind the actions covered in any agency policies, if applicable, implementing requirements pursuant to sections 4(b) and 5(b) of EO 13837.

Affected agencies shall, as soon as practicable, suspend, revise, or rescind existing agency actions taken to implement sections 4(b) and 5(b) of EO 13837 and, as necessary, establish procedures regarding approval of official time, subject to any collective bargaining obligations under 5 U.S.C. §7131.

To the extent affected agencies successfully renegotiated any CBA provisions intended to implement requirements of sections 4(b) and 5(b) of EO 13837 (e.g. official time approval procedures, etc.), agencies must identify those provisions and, as appropriate and consistent with applicable law and the policy articulated in EO 14003, engage impacted unions, as soon as practicable, to suspend, revise or rescind the actions covered in these CBA provisions.3 In carrying out this task, agencies should take a hard look at the degree to which, if any, EO 13837 influenced bargaining-table strategy and decision making. EO 14003 neither requires nor prohibits affected agencies from reopening CBAs on other matters not related to subjects covered by EO 13837.

Actions related to the system for monitoring the use of union time described in section 5(c) of EO 13837 – Agency actions intended to implement section 5(c) of EO 13837 shall cease immediately, including as follows: Affected agencies shall, as soon as practicable, suspend, revise, or rescind existing agency actions, including in any agency’s policies, taken to implement section 5(c) of EO 13837 and, as necessary, establish procedures for monitoring official time use, subject to any collective bargaining obligations under 5 U.S.C. §7131.

Affected agencies must withdraw any collective bargaining proposals in on-going collective bargaining which are intended to implement section 8 of EO 13837 and, as necessary, draft proposals consistent with law, the policy articulated in EO 14003, and taking into account agency-specific circumstances, as appropriate. This includes any related matter currently pending before the FMCS and the FSIP.

To the extent affected agencies successfully renegotiated any CBA provisions intended to implement requirements of section 5(c) of EO 13837 (e.g. official time monitoring, etc.), agencies must identify those provisions and, as appropriate and consistent with applicable law and the policy articulated in EO 14003, engage impacted unions, as soon as practicable, to suspend, revise or rescind the actions covered in these CBA provisions.4 In carrying out this task, agencies should take a hard look at the degree to which, if any, EO 13837 influenced bargaining-table strategy and decision making.

EO 14003 neither requires nor prohibits affected agencies from reopening CBAs on other matters not related to subjects covered by EO 13837.

Actions taken pursuant to section 8 of EO 13837 – Agency actions taken pursuant to section 8 of EO 13837 shall cease immediately, including as follows: Affected agencies shall, as appropriate and consistent with applicable law and the policy articulated in EO 14003, and as soon as practicable, suspend, revise or rescind the actions covered in any agency policies, if applicable, implementing requirements pursuant to section 8 of EO 13837.

Affected agencies must withdraw any collective bargaining proposals in on-going collective bargaining which are intended to implement section 8 of EO 13837 and, as necessary, draft proposals consistent with law, the policy articulated in EO 14003, and taking into account agency-specific circumstances, as appropriate. This includes any related matter currently pending before the FMCS and the FSIP.

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To the extent affected agencies successfully renegotiated any CBA provisions intended to implement any requirements of EO 13837 (e.g. official time limits, union offices, etc.), agencies must identify those provisions and, as appropriate and consistent with applicable law and the policy articulated in EO 14003, engage impacted unions, as soon as practicable, to suspend, revise or rescind the actions covered in these CBA provisions.5 In carrying out this task, agencies should take a hard look at the degree to which, if any, EO 13837 influenced bargaining-table strategy and decision making. EO 14003 neither requires nor prohibits affected agencies from reopening CBAs on other matters not related to subjects covered by EO 13837.

Revisions to discipline and unacceptable performance policies, including ones codified in bargaining agreements, issued pursuant to section 7(b) of EO 13839 – Agencies shall immediately stop implementation of EO 13839, including as follows: Affected agencies shall, as appropriate and consistent with applicable law and the policy articulated in EO 14003, and as soon as practicable, suspend, revise or rescind the actions covered in any agency policies implementing requirements pursuant to section 7(b) of EO 13839.

Affected agencies must withdraw any collective bargaining proposals in on-going collective bargaining that are intended to implement requirements of section 7(b) of EO 13839 and, as necessary, draft proposals consistent with law and taking into account agency-specific circumstances, as appropriate. This includes any related matter currently pending before the FMCS and the FSIP.

To the extent affected agencies successfully renegotiated any collective bargaining agreement (CBA) provisions intended to implement requirements of 7(b) of EO 13839, agencies must identify these provisions and, as appropriate and consistent with applicable law and the policy articulated in EO 14003, engage impacted unions, as soon as practicable, to suspend, revise or rescind the actions covered in these CBA provisions.6 In carrying out this task, agencies should take a hard look at the degree to which, if any, EO 13839 influenced bargaining-table strategy and decision making. This includes matters currently pending in agency head review in accordance with 5 U.S.C. §7114(c).

Agency actions to implement any other requirements of EO 13839 must cease immediately. This includes the requirement to submit certain data required by Section 6 of EO 13839. Agencies are to refrain from submitting to OPM any such data and should handle any such data as required by statutes and regulations governing Federal records and any applicable policies governing materials related to revoked policies.

EO 14003 neither requires nor prohibits affected agencies from reopening CBAs on other matters not related to subjects covered by EO 13839.

Direction to OPM

Section 3(e)(vii) and Section 3(f) of EO 14003 require OPM to review, identify, revise and rescind OPM actions arising from the final rule entitled “Probation on Initial Appointment to a Competitive Position, Performance-Based Reduction in Grade and Removal Actions and Adverse actions” published in the Federal Register on October 16, 2020 and effective on November 16, 2020. OPM is preparing proposed rule changes for notice and comment in the Federal Register which will revise or rescind certain OPM regulations. In the near future, this will be made available to agencies, employee groups and the public for comment. However, agencies should not delay in implementing the requirements of Section 3(e) of EO 14003 as it relates to any changes to agency policies made as a result of OPM’s regulations.

Section 3(e)(iii) requires OPM to rescind any guidance promulgated pursuant to section 7(d) of EO 13837. See attached listing of rescinded OPM guidance.

Ensuring the Right to Engage in Collective Bargaining

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Section 4 of the EO provides that “[t]he head of each agency subject to the provisions of chapter 71 of title 5, United States Code, shall elect to negotiate over the subjects set forth in 5 U.S.C. §7106(b)(1) and shall instruct subordinate officials to do the same.”

These subjects cover 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 failure by agency managers to engage in bargaining over the subjects covered by 5 U.S.C. 7106(b)(1) would be inconsistent with the President’s Directive. Therefore, in order to carry out the policy decision of the President reflected in the EO, agencies must commence bargaining in good faith over all of these subjects.

Bargaining over §7106(b)(1) subjects should occur with the following principles in mind:

1) Agency and union representatives will bargain over §7106(b)(1) subjects in good faith with the objective of reaching an agreement.

2) In the event the parties are unable to reach an agreement, either party may seek the assistance of the Federal Mediation and Conciliation Service (FMCS) as well as any other mutually agreed-upon dispute resolution process in accordance with 5 U.S.C. §7119(a). Every effort should be made to reach agreements that address the interests of both parties.

3) If FMCS assistance does not result in an agreement, either party may, in accordance with 5 U.S.C. §7119(b), take the impasse to the Federal Service Impasses Panel to resolve the impasse or to an arbitrator agreed upon by the parties to resolve the impasse under procedures approved by the Panel.

4) In the event of an agency head review of a Panel-ordered resolution, the agency may not disapprove the Panel-ordered resolution because it is a §7106(b)(1) subject.

5) In order to implement the policies of the Executive Order, agencies shall agree to bargain over the substance of §7106(b)(1) subjects, whether at the union’s request (e.g. midterm bargaining request) or as the result of a proposed agency action (e.g. union responding to an agency notice of a pending change subject to collective bargaining).

Because bargaining over these subjects has most recently been at the discretion of the agency, it may be a new experience for some management and union representatives, and OPM is available to provide technical assistance to support implementation of this policy.

Progress Toward a Living Wage for Federal Employees

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Section 5 of the EO provides that the “Director of OPM shall provide a report to the President with recommendations to promote a $15/hour minimum wage for Federal employees.” OPM is conducting an analysis of its authorities and will work with the Chief Human Capital Officers to gather any information necessary to complete this report.