By William Wiley, July 18, 2018
So many practitioners have wondered just what the President’s Executive Orders issued May 25 actually mean. We’ve received hundreds of questions here at FELTG, and we’re just a little training company who contracts occasionally with federal agencies. I can’t imagine what level of questioning there has been within the Executive Branch where answers actually carry official weight.
We were all excited to see that OPM, as the leader in human resources management in the federal government, recently (July 5) issued several pages of guidance as to how to implement the EOs. That is, until we read the guidance and then came away with that same empty feeling that comes from eating kale for dinner. Remember that lady years ago in the commercial who wondered, “Where’s the beef!?!” Yeah, I know exactly what she feels like.
First, the general shortcomings in OPM’s “Memorandum for Heads of Executive Departments and Agencies.” Lots of highfalutin words that repeat and paraphrase the EOs, but add little substance that actually helps those of us out here on the front lines trying to make government work. For example, the guidance spends a lot of time talking about the new requirements for reports and team participation. Yes, that’s important stuff. But if I’m a GS-12 Labor Relations Specialist servicing an HHS Indian Health Service clinic in South Dakota, and tomorrow I have to meet with the ticked-off union President to tell her what we’re going to do with the mandates in the EOs, I get little help from the guidance. In fact, on a couple of tough issues, the guidance says that if I have any questions, I should refer them to a local labor relations advisor. Heck, I AM the local labor relations advisor. I’m the one who needs more guidance.
Secondly, and I know this is picky, but the guidance is written by someone who has spent waaaay too much time writing government bureaucratese. Too many vague words written with an undeserved degree of officialness, with no practical guidance about how to go forward. For example, I ran into an abominable sentence with 65 words in it. Come to our legal writing seminars here at FELTG and learn how to write shorter sentences that are easier to understand. I hate officious government bureaucratese. And, so do you.
Third, the guidance from OPM is just flat out wrong in a couple of areas. For example:
- The guidance says that agencies are required to use FMCS and FSIP when trying to implement the changes required by the EOs. Well, I can’t find that requirement in law. If an agency wants to make a change, and after good faith bargaining it reaches an impasse with the union, the agency is free to notify the union that it will implement its last final offer by some date in the future without invoking either FMCS or FSIP. When that is done, it is then up to the union to either make new proposals to break the impasse or to invoke FMCS and FSIP. There is no statutory obligation for the agency to invoke the impasse procedures.
- Separately, when discussing the EO that makes it clear that progressive discipline is not a prerequisite to firing a bad federal employee, it adds the additional language that “consideration of progressive discipline is not … permitted when administering disciplinary action.” None of the EOs say that, and if they did, it would be inconsistent with 36 years of law implementing the Douglas factors in penalty assessment. Of course, we have to consider whether the employee has been previously disciplined. The EOs simply say that we are not bound to something less than removal if the employee has not been disciplined before.
Finally, and this is the big one if you’re working in a unionized organization, OPM’s guidance – without citing to any authority for the proposition – concludes that the EOs carry the weight of a government-wide regulation EVEN THOUGH there is good authority that says that an EO carries the weight of law. Here’s the 30-year old authority for the position that these EOs carry the weight of non-negotiable laws:
“As to whether Executive Order 12564 [an EO dealing with drug testing] constitutes law or Government-wide regulation within the meaning of section 7117(a)(1) of the Statute, we find that it has the force and effect of law. Courts consistently have held that executive orders issued pursuant to statutory authority are to be accorded the force and effect given to a law enacted by Congress. Executive Order 12564 was issued pursuant to the President’s statutory authority to regulate the civil service.” NTEU & Army, 30 FLRA 1046 (1988). [The President’s statutory authority to regulate the civil service comes from 5 USC 301 and 302, for those of you new to the business.]
So, what difference does it make if the EOs carry the weight of law or instead the weight of government-wide regulation? Well, it’s a HUGE difference:
- If the EOs are effectively law, they are controlling NOW without bargaining with the union. We just tell the union that there’s been a change in the law and wait for the union to propose impact and implementation proposals.
- If the EOs are effectively government-wide regulations, then we CANNOT implement them immediately. Instead we have to wait until to either a) the existing CBA expires, or b) the existing CBA provides for a reopener when EOs are issued or at the midterm. Once the contract expires or is reopened, we can unilaterally implement the government-wide rules at that time, but not before.
Under 5 USC section 7117, government-wide rules and regulations bar the negotiation of union proposals that conflict with them. The only limitation on the superiority of government-wide rules or regulations is found at 5 USC 7116(a)(7). That section makes it an unfair labor practice for an agency “to enforce any rule or regulation … which is in conflict with any applicable collective bargaining agreement if the agreement was in effect before the date the rule or regulation was prescribed.” Therefore, a government-wide rule is not controlling if there is a conflicting provision of a CBA that was in effect before the date the rule was issued.
I’m trying not to be too aggressive with these things, but here’s my reasoning regarding effective dates of the mandates in the EOs should anyone ask:
- OPM and other agencies trying to interpret the EOs argue for maintaining the status quo until an opener occurs in the contract because the EOs are mere government-wide regulations. In addition, some rely on this language for support: “Nothing in this order shall abrogate any collective bargaining agreement in effect on the date of this order.”
- Two sentences later, the EO says:
(c) Nothing in this order shall be construed to impair or otherwise affect the authority granted by law to an executive department or agency, or the head thereof.
(d) This order shall be implemented consistent with applicable law and subject to the availability of appropriations.
- 5 USC 7103(a)(14)(c) says that management does not need to bargain “to the extent such matters are specifically provided for by Federal statute.”
By case law, FLRA has equated an Executive Order with a law (e.g., a statute) when it comes to negotiability (NTEU & Army, above). It is ridiculous to the point of absurdity to think that a CBA could contain a provision that is inconsistent with law. For example, if Congress were to pass a law tomorrow that prohibited flexiplace, every flexiplace arrangement in the government, including those contained within a CBA, would become invalid immediately. It is inconceivable that the authority in a union contract could be superior to the authority of a federal law.
The two sentences quoted above give management the authority to conform to the law and say that the EO is to be implemented consistent with the law. The law says that executive orders are non-negotiable because they carry the weight of law. Now. They are not negotiable.
I’ve heard that some agency guidance argues that the new mandates contained within the EOs cannot be implemented now because of this language:
Sec. 9. General Provisions. (a) Nothing in this order shall abrogate any collective bargaining agreement in effect on the date of this order.
Regarding the no-abrogation language, the general rule is that management’s decision not to be bound by a CBA provision in conflict with law does not constitute a repudiation of the parties’ agreement. See Office of the Adjutant Gen., Missouri NG and ACT Show-Me Air #93 and Army #94 Chapters, 58 FLRA 418 (2003). If an EO has the effect of law for bargaining purposes, we have a law. If there’s a controlling law, there’s no repudiation. If there’s no repudiation, there’s no abrogation.
Look. Here at FELTG, we’re not saying that this is the right answer. What we ARE saying is that this appears to us to be a legally defensible approach, that the mandatory portions of the EOs are effective immediately, just like the provisions of a new federal statute would be effective immediately, regardless of contrary language in a CBA.
I don’t know President Trump personally. I don’t work for him, and all I know is what I read in the papers. Perhaps I’m mistaken, but he seems to be the kind of person who wants things done when he says he wants them done. On May 25, he laid out some significant restrictions that he believed should be applied to labor relations in the federal government. If I worked for him, I would be doing everything I could to implement those mandates as fast as I could, using every legal approach I could implement with a straight face until someone official told me I was wrong. Of course, that’s just me, and I admit that I am a wimp and that I scare easily. Those who are willing to tell him “no” clearly have greater fortitude than do I. [email protected]