President Joe Biden issued an executive order just days into his administration revoking many of the restrictions the Trump administration had placed on collective bargaining and instructing agencies to make every effort to bargain in good faith with their respective unions.
And though the Office of Personnel Management has since issued guidance on those orders and administration intent in federal labor relations, space for interpretation and the will of existing agency leadership remains.
Take for example, the Bureau of Engraving and Printing, which announced in February the award of a contract to provide clip-on location tracking devices designed to determine when employees get within a certain distance of each other and may therefore be potential vectors of COVID-19 infection.
According to a letter Sens. Chris Van Hollen, D-Md., and Ben Cardin D-Md., sent to the acting director of the Office of Personnel Management, the agency has declined to bargain with its employee unions on the use of such technology, citing authority in U.S. Code which states that nothing in collective bargaining protections shall prevent a management official of any agency to “take whatever actions may be necessary to carry out the agency mission during emergencies.”
And the COVID-19 pandemic has certainly been classified as an emergency.
However, that code also states that nothing in that section shall expressly prevent the agency and union from negotiating things like the number of employees and the “technology, methods and means of performing work.”
And Biden’s executive order, in fact, states that agencies “shall elect to negotiate over the subjects” covered in that section.
Legally, this means that agencies can exercise their emergency authority to not negotiate on certain topics, but Biden administration policy has instructed agency leaders to proactively negotiate on those topics.
Cardin and Van Hollen have requested that the OPM director clarify whether something like a location-tracking device falls under the “technology, methods and means of performing work,” that Biden has instructed agencies to bargain over.
In some cases, the decision of how to proceed with labor management practices has been left up to the agencies themselves, as in May 18 guidance issued by OPM on the re-creation of labor-management forums.
In 2009, such forums were mandated by executive order as a means of improving the working relationship between unions and agency management.
Those forums were then ordered to be disbanded under a 2017 executive order and characterized as a consumption of “considerable managerial time and taxpayer resources.”
According to that May 18 guidance, the order disbanding those forums is under review, meaning that guidance based on the order has been updated to allow agencies to make their own decisions regarding whether a labor-management forum would be beneficial for them.
“OPM believes the establishment of labor-management forums and use of [pre-decisional involvement] can be beneficial and useful to agencies and labor unions,” acting OPM Director Kathleen McGettigan wrote.
“Therefore, if an agency believes establishment of these forums or use of pre-decisional involvement will be productive and elects to use them or some version of them under 5 U.S.C. Chapter 71, the agency is encouraged to do so.”
Leaving interpretation and enforcement decisions up to agency leaders, some of whom have yet to be confirmed, has also led to federal unions stating that certain agencies have been far slower than others to pursue dismantling of the previous administration’s restrictive policies toward collective bargaining.
OPM itself has not had permanent leadership for over a year and has not had a Senate-confirmed director last more than a year since 2015. The Senate is currently considering Biden’s choice to lead the agency, Kiran Ahuja.
A recent congressionally mandated study even found that OPM and its director should have more authority to “speak loudly and clearly” on federal workforce policy.
Jessie Bur covers federal IT and management.
