Trump’s new memorandum clarifies that CBAs executed while the EOs were enjoined must be honored; new terms agreed upon during that period may be incorporated into a new CBA.
On October 11, President Trump issued a “Memorandum for the Heads of Executive Departments and Agencies” clarifying collective bargaining obligations in the aftermath of the D.C. Circuit’s ruling that vacated a district court injunction against substantial portions of his earlier triad of executive orders (EOs) that constrained protections for federal employees.
According to the memorandum, the parts of the EOs that had been subject to the now-vacated injunction had set “presumptively reasonable” goals that agencies must pursue during bargaining; directed agencies to refuse to bargain over permissive subjects of negotiation; and established government-wide rules that displace agencies’ duty to bargain with unions over contrary matters, regardless of whether the Federal Service Labor-Management Relations Statute would otherwise require bargaining absent those rules.
EOs and guidance reinstated. On October 4, 2019, the day after the appeals court issued the mandate implementing its order, the Office of Management and Budget announced that it was reinstating the three EOs and related guidance:
- EO 13836–Developing Efficient, Effective, and Cost-Reducing Approaches to Federal Sector Collective Bargaining
- EO 13837–Ensuring Transparency, Accountability, and Efficiency in Taxpayer-Funded Union Time Use
- EO 13839–Promoting Accountability and Streamlining Removal Procedures Consistent with Merit System Principles
- Guidance for Implementation of Executive Order 13836–Developing Efficient, Effective, and Cost-Reducing Approaches to Federal Sector Collective Bargaining
- Guidance for Implementation of Executive Order 13837–Ensuring Transparency, Accountability, and Efficiency in Taxpayer-Funded Union Time Use
- Guidance for Implementation of Executive Order 13839–Promoting Accountability and Streamlining Removal Procedures Consistent with Merit System Principles
CBAs not addressed in the EOs. Notably, sections 4(c)(ii) and 8(a) of EO 13837 and section 8(b) of EO 13839 recognize agencies’ ability to comply with collective bargaining agreements (CBAs) containing prohibited terms so long as those agreements were effective on the date of the EOs, according to the memorandum.
While the injunction was in effect, agencies were still able to bargain over subjects covered by the enjoined provisions, but the EOs did not address CBAs entered into during this period. Accordingly, the memorandum clarifies agencies’ obligations with respect to those agreements.
CBAs and new terms negotiated during injunction. The memorandum directs that agencies “shall adhere to the terms of collective bargaining agreements executed while the injunction was in effect.” However, agencies that remain engaged in collective-bargaining negotiations, to the extent consistent with law, must comply with the terms of the EOs.
But, where between the date of the EOs (May 25, 2018) and the date of the D.C. Circuit’s mandate (October 3, 2019), the parties to collective bargaining negotiations have executed an agreement to incorporate into a new CBA specific terms prohibited by the EOs, the agency may execute the new CBA containing such terms, and terms ancillary to those specific terms, notwithstanding the EOs.
To the extent it is necessary, the memorandum is to be construed to amend EOs 13836, 13837, and 13839.
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