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Executive Orders and Federal Labor-Management Relations: A Match Made in Hades

This article is broken down into four blogs. This first blog introduces you to the topic of executive orders and how they have historically impacted federal labor-management relations.

Article Two of the U.S. Constitution grants the president broad powers to execute the duties of the office of the president. Although not specifically called “executive orders” in the Constitution, our political leaders since the founding of this country have interpreted Article Two to include the power of the president to issue executive orders.

You might wonder how an executive order differs from law. An executive order is a presidential instruction or order that allows the desires of the president to be carried out. Typically, a law starts out as a bill that worked its way through Congress and is signed by the president (think “Schoolhouse Rock”). A law generally takes support of the House of Representatives, the Senate, and the president in order to reach agreement. An executive order, however, is something that the president issues without input or permission from Congress and can be cancelled by the incoming president with the stroke of a pen.

Presidents use executive orders to further their political and social agendas. Depending on the ideology of the sitting president, these executive orders may show a preference toward one position (or group) or another.

Since George Washington’s administration, executive orders have been issued on a variety of topics, including international trade issues, federal holidays, and a host of other issues. According to Wikipedia, there have been 15,358 executive orders issued to date. Franklin D. Roosevelt has the distinction of having issued the most executive orders (3,522), but he was the only president who served three terms in office. One of the most famous executive orders is the Emancipation Proclamation, which was issued by President Abraham Lincoln.

Emancipation Proclamation

It wasn’t until January 17, 1962, that an executive order was issued that directly related to federal labor-management relations when President John F. Kennedy issued E.O. 10988. In an article entitled, “Collective Bargaining in the Federal Service, William Jones, Jr. states that the issuance of E.O. 10988marks the beginning of the contemporary period in federal L-M relations. E.O. 10988 allowed federal employees to join a labor organization. An important aspect of this executive order is that it gave unions bargaining power to bargain which they previously lacked. This order also forbade managerial reprisal arising from the employees exercising the rights granted in this order.

After Kennedy’s E.O. 10988, the federal employee union movement continued to gain momentum. President Richard Nixon, a republican, issuedE.O. 11491in 1969. This E.O. created a federal labor-management council and created the Federal Services Impasses Panel (FSIP). Another important thing it did was allowed unions to bargain over how much “official time” or government time spent doing union representational work (and not the work that the union representative was hired to perform), the unions could use. This was a very important development and has had long-lasting impact to this day. Many experts in the field of L-M relations think that official time is one of the biggest points of contention between federal labor and management.

In 1973, after implementation of E.O. 11491, the Civil Service Commission reported that official time became one of the top three most contentious articles within a collective bargaining agreement with the number of impasses jumping from 1 of the 27 cases to 10 of the 68 cases at the FSIP. Around 1976, some of the larger unions began transitioning their union representatives to full-time union work, or 100% official time. This is a trend that continues to this day.

President Gerald Ford issued E.O. 11838 in 1975, which increased the scope of bargaining and expanded the grievance and arbitration procedures. Shortly after Ford’s E.O. 11838, federal agencies began hiring labor relations specialists to sort through the complex issues. Today, the labor relations specialists is an integral part of federal agencies.

The federal employee union movement continued to gain bi-partisan political support, leading to the Civil Service Reform Act (CSRA) of 1978, codifying much of Nixon’s E.O. 11491. From a federal L-M perspective, things were relatively quiet under Presidents Reagan and Bush, but picked up with President Clinton.

Clinton started the swinging of the pendulum when he issued E.O. 12871 in 1993, which established federal labor-management partnerships. This E.O. required federal agencies to include employees and unions in their pre-decisional considerations of agency management. Effectively, managers would not be allowed to make decisions on their own anymore, simply notifying the union prior to effecting the change after the requisite bargaining. E.O. 12871also required agencies to bargain over topics considered to be “permissive.” This required federal agencies to bargain over the methods, means, number of employees, and other aspects as listed in Title 5, United States Code, §7106(b)(1). Over time, Clinton issued a couple of amendments to his original E.O. on partnerships, which allowed the E.O. to apply to even more employee groups.

President George W. Bush cancelled President Clinton’s E.O.s within a month of taking office with the issuance of E.O. 13203. Under Bush, federal agencies no longer had to have partnerships, nor did federal agencies have to bargain over permissive topics. However, when President Barrack Obama took office in 2009, he implemented E.O. 13522, which created labor-management forums at each federal agency. It also established a pilot-project in which selected agencies or departments would bargain over permissive topics and waive any objection to taking a disagreement over permissive topics to the FSIP.

Obama’s executive order lasted until President Donald Trump cancelled them on May 25, 2018. That same day, President Trump issued E.O. 13836, which not only cancelled all previous executive orders that President Obama issued on federal L-M, but it took it much further. E.O. 13836 actually ordered all executive branch agencies to reopen all collective bargaining agreements (CBA) and bargain certain elements into the contracts. Trump also issued E.O. 13837, which intended to have unions pay for office space and equipment that they use or be evicted from the agencies’ premises. It also reduced the amount of official time that unions could use. There were other aspects of this E.O., as well. The federal unions challenged these executive orders in court, where a federal judge overturned much of them, but left some aspects intact. At the time that this blog was written, the Trump administration is appealing the ruling, but the appeal has not been heard.

In subsequent blogs, we’ll address the issue of federal labor-management relations in a little more detail.

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