OPM Instructs Agencies to Reopen Trump-era Union Contracts

Departments currently engaged in collective bargaining negotiations are expected to rescind proposals restricting unions’ access to official time, grievance proceedings and to begin bargaining “in good faith.”

The Office of Personnel Management on Friday issued long-awaited guidance outlining how agencies should proceed to implement President Biden’s executive order rescinding a slew of Trump-era directives that aimed to crack down on unions and to politicize the federal civil service.

On Biden’s third day in office, he signed an executive order rescinding three executive orders that aimed to make it easier to fire federal workers, restrict the time and scope of collective bargaining and drastically cut the amount of official time available to union representatives. The order also abolished the controversial Schedule F job classification system that threatened to strip thousands of federal employees of their civil service protections, and it instructed agencies to bargain with unions on a much wider range of subjects.

But unions reported that agencies were slow to move forward with efforts to implement the new policy, saying that management often said they were waiting for guidance from agency lawyers and OPM.

Acting OPM Director Kathleen McGettigan issued that guidance in a memo to agency heads on Friday, instructing agencies to reopen all union contracts with provisions implementing Trump’s workforce executive orders. And if agencies are currently engaged in negotiations, as is the case at the Veterans Affairs Department, the department is expected to rescind any proposals on these topics, even if they have already gone through the Federal Service Impasses Panel process.

Administration officials told Government Executive that the Biden White House wants to send agencies a clear signal that they must abandon the anti-union policies of the previous administration.

"We're serious, and the president is serious, about resetting labor-management relations, and the executive order issued on Day 3 [of the administration] is very clear, and we wanted the guidance to be true to that,” an official said. “We are genuine when we say we want to engage with federal workers and union representatives as partners as we tackle the challenges we've got to deal with in the government."

According to the guidance, agencies should seek to reopen their contracts with labor groups “as soon as is practicable,” and in cases where departments implemented policies unilaterally because they had been operating under an expired collective bargaining agreement, they must revert to their pre-implementation policies immediately. McGettigan instructed agencies to interpret that as broadly as possible.

“In carrying out this task, agencies should take a hard look at the degree to which, if any, [the executive orders] influenced bargaining-table strategy and decision-making,” she wrote. “[Biden’s order] neither requires nor prohibits affected agencies from reopening CBAs on other matters not related to subjects covered by [the Trump orders].”

The memo also outlines Biden’s directive that agencies should expand the scope of negotiations with unions to include so-called “permissive” bargaining subjects.

“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,” McGettigan wrote. “A failure by agency managers to engage in bargaining over the subjects . . . 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.”

McGettigan appeared to specifically condemn the tactics used by agencies in collective bargaining negotiations during the Trump administration. Unions frequently called out management for what they called “surface level bargaining,” a form of bad-faith bargaining in which a party moves as quickly as possible through a negotiation process without reaching agreement in order to rush to the Federal Service Impasses Panel, which would unilaterally dictate the terms of a union contract.

“Agency and union representatives will bargain . . . in good faith with the objective of reaching an agreement,” the memo states. “In the event the parties are unable to reach an agreement, either party may seek the assistance of the Federal Mediation and Conciliation Service as well as any other mutually agreed-upon dispute resolution process in accordance with [the law]. Every effort should be made to reach agreements that address the interests of both parties.”

In a sign that OPM intends to take a hands-on approach to ensuring agencies comply with the executive order, McGettigan wrote that she will continue to require agencies to submit completed union contracts and arbitration decisions to OPM for analysis.

The executive order also requires OPM to rescind controversial regulations finalized last fall related to probationary periods, adverse personnel actions and making it easier for federal employees to cancel their union dues. McGettigan wrote that the agency will publish new regulations on those topics for public comment soon but suggested there are actions agencies may be able to take on their own before those regulations are implemented.

“In the near future, [the rule changes] will be made available to agencies, employee groups and the public for comment,” McGettigan wrote. “However, agencies should not delay in implementing the requirements of [the executive order] as it relates to any changes in agency policies made as a result of OPM’s regulations.”