Guidance for Implementation of Executive Order 13812

On Wednesday, December 13, 2017, Kathleen McGettigan, Acting Director of OPM published guidance on the implementation of Executive Order 13812. The order, signed by President Trump on September 29, 2017, revoked President Obama’s Executive Order 13522 of December 9, 2009, directing agencies to create labor management forums, engaging public sector unions in pre-decisional involvement discussions to improve the delivery of government services to the broader public.

In enacting the Federal Service Labor-Management Relations Statute (Statute), Congress intended for collective bargaining “to facilitate and improve employee performance and the efficient accomplishment of the operations of the Government.” Executive Order 13522 offered government agencies an additional venue to engage employees through their representatives allowing them to participate in workplace matters as partners with management with the ultimate goal of improved agency products and services. However, in his E.O., President Trump stated; “The National Council on Federal Labor-Management Relations (Council) and related agency-level labor-management forums have consumed considerable managerial time and taxpayer resources, but they have not fulfilled their goal of promoting collaboration in the Federal workforce. Public expenditures on the Council and related forums have produced few benefits to the public, and they should, therefore, be discontinued.”

President Trump’s E.O. directs department and agency heads to “promptly move to rescind any orders, rules, regulations, guidelines, or policies implementing or enforcing Executive Order 13522” to the extent “consistent with law.” The order further directs the abolishment of existing forums, partnership councils, committees, etc., to the extent allowed by applicable law. In his E.O., the President noted, that nothing in his order repealed or did away with collective bargaining agreements in effect at the time the order was issued. Therefore, agencies with provisions in their CBA’s establishing forums, or councils, or covering PDI activities, may continue such practices consistent with their agreements. However, OPM does exhort agencies to re-negotiate those provisions “at the earliest practicable juncture.”

Rightfully so, the OPM’s guidance. does acknowledge that agencies have the discretion under the Federal Service Labor-Management Relations Statute (5 USC 71) to adopt labor relations strategies that are best suited to their organizational missions. If an agency does elect to implement PDI practices, it should do so “to the extent that the cost of doing so brings tangible benefits to the agency.”

In her memorandum, the OPM director suggests that terms or articles of a CBA, or MOU was agreed upon for the purpose of creating and supporting forums, or promoting pre-decisional involvement, pursuant to E.O. 13522; “agencies may have the authority to declare such provisions or agreements non-enforceable and thus null and void.” Normally, any contract provision conflicting with law is null and void, since contracts are subject to applicable law, whether the law was in existence at the time the contract came into effect, or passed after the effective date of the contract. It is important to take into consideration that an executive order is a directive issued under the authority of the president of the United States, and equivalent in stature to a binding regulation but without the status of a statute. Moreover, New government-wide rules or regulations do not render existing contract language null and void unless the rule or regulation implements mandatory requirements of law. Prior to declaring a provision of a CBA or a MOU/MOA, labor relations specialists should consult with their agency counsel.

Lastly, agencies are required to inform OPM no later than December 22, 2017, of the steps taken to comply with the directive to abolish labor forums, in President Trump’s order, and to include in their notices the costs associated with those activities. Additionally, OPM instructs agencies that intend to continue the use of labor forums and/or PDI, in spite of E.O. 13812, to keep records of the costs associated with those activities for future reporting requirements.

The complete memorandum is available via the CHCO Council Transmittal site here.

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