Presidential DocumentExecutive Order 138362018-11913
Developing Efficient, Effective, and Cost- Reducing Approaches To Federal Sector Collective Bargaining
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
June 1, 2018
Signed
May 25, 2018
Issuing agencies
Executive Office of the President
Full Text
<html>
<head>
<title>Federal Register, Volume 83 Issue 106 (Friday, June 1, 2018)</title>
</head>
<body><pre>
[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 [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[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.
<GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT>
(Presidential Sig.)
THE WHITE HOUSE,
May 25, 2018.
[FR Doc. 2018-11913
Filed 5-31-18; 8:45 am]
Billing code 3295-F8-P
</pre></body>
</html>Indexed from Federal Register on June 1, 2018.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.