Developing Efficient, Effective, and Cost- Reducing Approaches To Federal Sector Collective Bargaining, 25329-25334 [2018-11913]

Agencies

• Executive Office of the President

[Federal Register Volume 83, Number 106 (Friday, June 1, 2018)]
[Presidential Documents]
[Pages 25329-25334]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-11913]




                        Presidential Documents 



Federal Register / Vol. 83, No. 106 / Friday, June 1, 2018 / 
Presidential Documents

[[Page 25329]]


                Executive Order 13836 of May 25, 2018

                
Developing Efficient, Effective, and Cost-
                Reducing Approaches To Federal Sector Collective 
                Bargaining

                By the authority vested in me as President by the 
                Constitution and the laws of the United States of 
                America, and in order to assist executive departments 
                and agencies (agencies) in developing efficient, 
                effective, and cost-reducing collective bargaining 
                agreements (CBAs), as described in chapter 71 of title 
                5, United States Code, it is hereby ordered as follows:

                Section 1. Policy. (a) Section 7101(b) of title 5, 
                United States Code, requires the Federal Service Labor-
                Management Relations Statute (the Statute) to be 
                interpreted in a manner consistent with the requirement 
                of an effective and efficient Government. 
                Unfortunately, implementation of the Statute has fallen 
                short of these goals. CBAs, and other agency agreements 
                with collective bargaining representatives, often make 
                it harder for agencies to reward high performers, hold 
                low-performers accountable, or flexibly respond to 
                operational needs. Many agencies and collective 
                bargaining representatives spend years renegotiating 
                CBAs, with taxpayers paying for both sides' 
                negotiators. Agencies must also engage in prolonged 
                negotiations before making even minor operational 
                changes, like relocating office space.

                    (b) The Federal Government must do more to apply 
                the Statute in a manner consistent with effective and 
                efficient Government. To fulfill this obligation, 
                agencies should secure CBAs that: promote an effective 
                and efficient means of accomplishing agency missions; 
                encourage the highest levels of employee performance 
                and ethical conduct; ensure employees are accountable 
                for their conduct and performance on the job; expand 
                agency flexibility to address operational needs; reduce 
                the cost of agency operations, including with respect 
                to the use of taxpayer-funded union time; are 
                consistent with applicable laws, rules, and 
                regulations; do not cover matters that are not, by law, 
                subject to bargaining; and preserve management rights 
                under section 7106(a) of title 5, United States Code 
                (management rights). Further, agencies that form part 
                of an effective and efficient Government should not 
                take more than a year to renegotiate CBAs.

                Sec. 2. Definitions. For purposes of this order:

                    (a) The phrase ``term CBA'' means a CBA of a fixed 
                or indefinite duration reached through substantive 
                bargaining, as opposed to (i) agreements reached 
                through impact and implementation bargaining pursuant 
                to sections 7106(b)(2) and 7106(b)(3) of title 5, 
                United States Code, or (ii) mid-term agreements, 
                negotiated while the basic comprehensive labor contract 
                is in effect, about subjects not included in such 
                contract.
                    (b) The phrase ``taxpayer-funded union time'' means 
                time granted to a Federal employee to perform non-
                agency business during duty hours pursuant to section 
                7131 of title 5, United States Code.

                Sec. 3. Interagency Labor Relations Working Group. (a) 
                There is hereby established an Interagency Labor 
                Relations Working Group (Labor Relations Group).

                    (b)  Organization. The Labor Relations Group shall 
                consist of the Director of the Office of Personnel 
                Management (OPM Director), representatives of 
                participating agencies determined by their agency head 
                in consultation with the OPM Director, and OPM staff 
                assigned by the OPM Director. The OPM Director shall 
                chair the Labor Relations Group and, subject to the 
                availability

[[Page 25330]]

                of appropriations and to the extent permitted by law, 
                provide administrative support for the Labor Relations 
                Group.
                    (c) Agencies. Agencies with at least 1,000 
                employees represented by a collective bargaining 
                representative pursuant to chapter 71 of title 5, 
                United States Code, shall participate in the Labor 
                Relations Group. Agencies with a smaller number of 
                employees represented by a collective bargaining 
                representative may, at the election of their agency 
                head and with the concurrence of the OPM Director, 
                participate in the Labor Relations Group. Agencies 
                participating in the Labor Relations Group shall 
                provide assistance helpful in carrying out the 
                responsibilities outlined in subsection (d) of this 
                section. Such assistance shall include designating an 
                agency employee to serve as a point of contact with OPM 
                responsible for providing the Labor Relations Group 
                with sample language for proposals and counter-
                proposals on significant matters proposed for inclusion 
                in term CBAs, as well as for analyzing and discussing 
                with OPM and the Labor Relations Group the effects of 
                significant CBA provisions on agency effectiveness and 
                efficiency. Participating agencies should provide other 
                assistance as necessary to support the Labor Relations 
                Group in its mission.
                    (d) Responsibilities and Functions. The Labor 
                Relations Group shall assist the OPM Director on 
                matters involving labor-management relations in the 
                executive branch. To the extent permitted by law, its 
                responsibilities shall include the following:

(i) Gathering information to support agency negotiating efforts, including 
the submissions required under section 8 of this order, and creating an 
inventory of language on significant subjects of bargaining that have 
relevance to more than one agency and that have been proposed for inclusion 
in at least one term CBA;

(ii) Developing model ground rules for negotiations that, if implemented, 
would minimize delay, set reasonable limits for good-faith negotiations, 
call for Federal Mediation and Conciliation Service (FMCS) to mediate 
disputed issues not resolved within a reasonable time, and, as appropriate, 
promptly bring remaining unresolved issues to the Federal Service Impasses 
Panel (the Panel) for resolution;

(iii) Analyzing provisions of term CBAs on subjects of bargaining that have 
relevance to more than one agency, particularly those that may infringe on, 
or otherwise affect, reserved management rights. Such analysis should 
include an assessment of term CBA provisions that cover comparable 
subjects, without infringing, or otherwise affecting, reserved management 
rights. The analysis should also assess the consequences of such CBA 
provisions on Federal effectiveness, efficiency, cost of operations, and 
employee accountability and performance. The analysis should take 
particular note of how certain provisions may impede the policies set forth 
in section 1 of this order or the orderly implementation of laws, rules, or 
regulations. The Labor Relations Group may examine general trends and 
commonalities across term CBAs, and their effects on bargaining-unit 
operations, but need not separately analyze every provision of each CBA in 
every Federal bargaining unit;

(iv) Sharing information and analysis, as appropriate and permitted by law, 
including significant proposals and counter-proposals offered in 
bargaining, in order to reduce duplication of efforts and encourage common 
approaches across agencies, as appropriate;

(v) Establishing ongoing communications among agencies engaging with the 
same labor organizations in order to facilitate common solutions to common 
bargaining initiatives; and

(vi) Assisting the OPM Director in developing, where appropriate, 
Government-wide approaches to bargaining issues that advance the policies 
set forth in section 1 of this order.

                    (e) Within 18 months of the first meeting of the 
                Labor Relations Group, the OPM Director, as the Chair 
                of the group, shall submit to the President,

[[Page 25331]]

                through the Office of Management and Budget (OMB), a 
                report proposing recommendations for meeting the goals 
                set forth in section 1 of this order and for improving 
                the organization, structure, and functioning of labor 
                relations programs across agencies.

                Sec. 4. Collective Bargaining Objectives. (a) The head 
                of each agency that engages in collective bargaining 
                under chapter 71 of title 5, United States Code, shall 
                direct appropriate officials within each agency to 
                prepare a report on all operative term CBAs at least 1 
                year before their expiration or renewal date. The 
                report shall recommend new or revised CBA language the 
                agency could seek to include in a renegotiated 
                agreement that would better support the objectives of 
                section 1 of this order. The officials preparing the 
                report shall consider the analysis and advice of the 
                Labor Relations Group in making recommendations for 
                revisions. To the extent permitted by law, these 
                reports shall be deemed guidance and advice for agency 
                management related to collective bargaining under 
                section 7114(b)(4)(C) of title 5, United States Code, 
                and thus not subject to disclosure to the exclusive 
                representative or its authorized representative.

                    (b) Consistent with the requirements and provisions 
                of chapter 71 of title 5, United States Code, and other 
                applicable laws and regulations, an agency, when 
                negotiating with a collective bargaining 
                representative, shall:

(i) establish collective bargaining objectives that advance the policies of 
section 1 of this order, with such objectives informed, as appropriate, by 
the reports required by subsection (a) of this section;

(ii) consider the analysis and advice of the Labor Relations Group in 
establishing these collective bargaining objectives and when evaluating 
collective bargaining representative proposals;

(iii) make every effort to secure a CBA that meets these objectives; and

(iv) ensure management and supervisor participation in the negotiating team 
representing the agency.

                Sec. 5. Collective Bargaining Procedures. (a) To 
                achieve the purposes of this order, agencies shall 
                begin collective bargaining negotiations by making 
                their best effort to negotiate ground rules that 
                minimize delay, set reasonable time limits for good-
                faith negotiations, call for FMCS mediation of disputed 
                issues not resolved within those time limits, and, as 
                appropriate, promptly bring remaining unresolved issues 
                to the Panel for resolution. For collective bargaining 
                negotiations, a negotiating period of 6 weeks or less 
                to achieve ground rules, and a negotiating period of 
                between 4 and 6 months for a term CBA under those 
                ground rules, should ordinarily be considered 
                reasonable and to satisfy the ``effective and 
                efficient'' goal set forth in section 1 of this order. 
                Agencies shall commit the time and resources necessary 
                to satisfy these temporal objectives and to fulfill 
                their obligation to bargain in good faith. Any 
                negotiations to establish ground rules that do not 
                conclude after a reasonable period should, to the 
                extent permitted by law, be expeditiously advanced to 
                mediation and, as necessary, to the Panel.

                    (b) During any collective bargaining negotiations 
                under chapter 71 of title 5, United States Code, and 
                consistent with section 7114(b) of that chapter, the 
                agency shall negotiate in good faith to reach agreement 
                on a term CBA, memorandum of understanding (MOU), or 
                any other type of binding agreement that promotes the 
                policies outlined in section 1 of this order. If such 
                negotiations last longer than the period established by 
                the CBA ground rules -- or, absent a pre-set deadline, 
                a reasonable time -- the agency shall consider whether 
                requesting assistance from the FMCS and, as 
                appropriate, the Panel, would better promote effective 
                and efficient Government than would continuing 
                negotiations. Such consideration should evaluate the 
                likelihood that continuing negotiations without FMCS 
                assistance or referral to the Panel would produce an 
                agreement consistent with the goals of section 1 of 
                this order, as well as the cost to the public of 
                continuing to pay for both agency and collective 
                bargaining representative negotiating teams. Upon the 
                conclusion of the sixth month of any negotiation, the 
                agency head shall receive notice from appropriate 
                agency staff and shall

[[Page 25332]]

                receive monthly notifications thereafter regarding the 
                status of negotiations until they are complete. The 
                agency head shall notify the President through OPM of 
                any negotiations that have lasted longer than 9 months, 
                in which the assistance of the FMCS either has not been 
                requested or, if requested, has not resulted in 
                agreement or advancement to the Panel.
                    (c) If the commencement or any other stage of 
                bargaining is delayed or impeded because of a 
                collective bargaining representative's failure to 
                comply with the duty to negotiate in good faith 
                pursuant to section 7114(b) of title 5, United States 
                Code, the agency shall, consistent with applicable law 
                consider whether to:

(i) file an unfair labor practice (ULP) complaint under section 7118 of 
title 5, United States Code, after considering evidence of bad-faith 
negotiating, including refusal to meet to bargain, refusal to meet as 
frequently as necessary, refusal to submit proposals or counterproposals, 
undue delays in bargaining, undue delays in submission of proposals or 
counterproposals, inadequate preparation for bargaining, and other conduct 
that constitutes bad-faith negotiating; or

(ii) propose a new contract, memorandum, or other change in agency policy 
and implement that proposal if the collective bargaining representative 
does not offer counter-proposals in a timely manner.

                    (d) An agency's filing of a ULP complaint against a 
                collective bargaining representative shall not further 
                delay negotiations. Agencies shall negotiate in good 
                faith or request assistance from the FMCS and, as 
                appropriate, the Panel, while a ULP complaint is 
                pending.
                    (e) In developing proposed ground rules, and during 
                any negotiations, agency negotiators shall request the 
                exchange of written proposals, so as to facilitate 
                resolution of negotiability issues and assess the 
                likely effect of specific proposals on agency 
                operations and management rights. To the extent that an 
                agency's CBAs, ground rules, or other agreements 
                contain requirements for a bargaining approach other 
                than the exchange of written proposals addressing 
                specific issues, the agency should, at the soonest 
                opportunity, take steps to eliminate them. If such 
                requirements are based on now-revoked Executive Orders, 
                including Executive Order 12871 of October 1, 1993 
                (Labor-Management Partnerships) and Executive Order 
                13522 of December 9, 2009 (Creating Labor-Management 
                Forums to Improve Delivery of Government Services), 
                agencies shall take action, consistent with applicable 
                law, to rescind these requirements.
                    (f) Pursuant to section 7114(c)(2) of title 5, 
                United States Code, the agency head shall review all 
                binding agreements with collective bargaining 
                representatives to ensure that all their provisions are 
                consistent with all applicable laws, rules, and 
                regulations. When conducting this review, the agency 
                head shall ascertain whether the agreement contains any 
                provisions concerning subjects that are non-negotiable, 
                including provisions that violate Government-wide 
                requirements set forth in any applicable Executive 
                Order or any other applicable Presidential directive. 
                If an agreement contains any such provisions, the 
                agency head shall disapprove such provisions, 
                consistent with applicable law. The agency head shall 
                take all practicable steps to render the determinations 
                required by this subsection within 30 days of the date 
                the agreement is executed, in accordance with section 
                7114(c) of title 5, United States Code, so as not to 
                permit any part of an agreement to become effective 
                that is contrary to applicable law, rule, or 
                regulation.

                Sec. 6. Permissive Bargaining. The heads of agencies 
                subject to the provisions of chapter 71 of title 5, 
                United States Code, may not negotiate over the 
                substance of the subjects set forth in section 
                7106(b)(1) of title 5, United States Code, and shall 
                instruct subordinate officials that they may not 
                negotiate over those same subjects.

                Sec. 7. Efficient Bargaining over Procedures and 
                Appropriate Arrangements. (a) Before beginning 
                negotiations during a term CBA over matters addressed 
                by sections 7106(b)(2) or 7106(b)(3) of title 5, United 
                States Code, agencies shall evaluate whether or not 
                such matters are already covered by the

[[Page 25333]]

                term CBA and therefore are not subject to the duty to 
                bargain. If such matters are already covered by a term 
                CBA, the agency shall not bargain over such matters.

                    (b) Consistent with section 1 of this order, 
                agencies that engage in bargaining over procedures 
                pursuant to section 7106(b)(2) of title 5, United 
                States Code, shall, consistent with their obligation to 
                negotiate in good faith, bargain over only those items 
                that constitute procedures associated with the exercise 
                of management rights, which do not include measures 
                that excessively interfere with the exercise of such 
                rights. Likewise, consistent with section 1 of this 
                order, agencies that engage in bargaining over 
                appropriate arrangements pursuant to section 7106(b)(3) 
                of title 5, United States Code, shall, consistent with 
                their obligation to negotiate in good faith, bargain 
                over only those items that constitute appropriate 
                arrangements for employees adversely affected by the 
                exercise of management rights. In such negotiations, 
                agencies shall ensure that a resulting appropriate 
                arrangement does not excessively interfere with the 
                exercise of management rights.

                Sec. 8. Public Accessibility. (a) Each agency subject 
                to chapter 71 of title 5, United States Code, that 
                engages in any negotiation with a collective bargaining 
                representative, as defined therein, shall submit to the 
                OPM Director each term CBA currently in effect and its 
                expiration date. Such agency shall also submit any new 
                term CBA and its expiration date to the OPM Director 
                within 30 days of its effective date, and submit new 
                arbitral awards to the OPM Director within 10 business 
                days of receipt. The OPM Director shall make each term 
                CBA publicly accessible on the Internet as soon as 
                practicable.

                    (b) Within 90 days of the date of this order, the 
                OPM Director shall prescribe a reporting format for 
                submissions required by subsection (a) of this section. 
                Within 30 days of the OPM Director's having prescribed 
                the reporting format, agencies shall use this reporting 
                format and make the submissions required under 
                subsection (a) of this section.

                Sec. 9.  General Provisions. (a) Nothing in this order 
                shall be construed to impair or otherwise affect:

(i) the authority granted by law to an executive department or agency, or 
the head thereof; or

(ii) the functions of the OMB Director relating to budgetary, 
administrative, or legislative proposals.

                    (b) This order shall be implemented consistent with 
                applicable law and subject to the availability of 
                appropriations.
                    (c) Nothing in this order shall abrogate any CBA in 
                effect on the date of this order.
                    (d) The failure to produce a report for the agency 
                head prior to the termination or renewal of a CBA under 
                section 4(a) of this order shall not prevent an agency 
                from opening a CBA for renegotiation.

[[Page 25334]]

                    (e) This order is not intended to, and does not, 
                create any right or benefit, substantive or procedural, 
                enforceable at law or in equity by any party against 
                the United States, its departments, agencies, or 
                entities, its officers, employees, or agents, or any 
                other person.
                
                
                    (Presidential Sig.)

                THE WHITE HOUSE,

                    May 25, 2018.

[FR Doc. 2018-11913
Filed 5-31-18; 8:45 am]
Billing code 3295-F8-P