May 20, 2021

Van Hollen, Cardin Seek Clarity to Ensure Agencies are Fully Implementing Biden Executive Order Restoring Federal Employees’ Collective Bargaining Rights

Today, U.S. Senators Chris Van Hollen and Ben Cardin (both D-Md.) sent a letter to Kathleen McGettigan, Acting Director of the Office of Personnel Management (OPM) regarding President Biden’s directive in an Executive Order to expand obligations for federal agencies to bargain with unions representing their workforce. The Senators’ letter requests clarity on this provision in response to concerns they’ve received from constituents who were refused the opportunity to bargain over a new workplace policy recently implemented by the Bureau of Engraving and Printing (BEP). The letter asks OPM to review a BEP assertion that the Executive Order’s directive for agencies to bargain does not apply in cases the agency deems to be an emergency, to provide guidance on this situation and ensure that BEP and other federal agencies are fully implementing President Biden’s Executive Order.

The Senators begin, ‘We are writing to ask for clarification regarding the requirement in Section 4 of President Biden’s Executive Order (EO) 14003, Protecting the Federal Workforce, regarding the requirement for agencies to negotiate with a labor organization representing such agency’s employees over subjects described in 5 U.S.C. 7106(b)(1), which covers, in part, the ‘technology, methods, and means of performing work.’ Our staff has been advised by officials at the Bureau of Engraving and Printing (BEP) that this requirement does not apply to actions that the agency deems necessary during emergencies. We ask that you confirm whether or not this is the case, and that you advise BEP of your finding as well.”

“BEP employs over 1,000 people in the District of Columbia, and hundreds of these workers live in Maryland. In a communication to our office, BEP personnel stated that EO 14003 did not require the agency to bargain – as several unions representing BEP workers have requested – over a new policy requiring workers to wear tracking devices, ‘because the emergency exception under 5 USC s 7106(a)(2)(D) applied.’ However, neither EO 14003 nor the related OPM guidance describe any such exception,” they continue.

“While Sec. 7106(a)(2)(D) provides that as a general matter, an agency retains its authority to take necessary actions to carry out its mission during emergencies, this provision is subject to subsection (b), which states that ‘nothing in this section shall preclude any agency and any labor organization from negotiating,’ among other things, the subjects described in Sec. 7106(b)(1). In other words, Sec. 7106(a)(2)(D) does not appear to prohibit an agency from bargaining over a subject described in Sec. 7106(b)(1), if the agency elects to do so. And EO 14003 requires agencies to elect to do so,” the Senators note.

“We appreciate your analysis of this question, and look forward to your reply,” they conclude.

A copy of the letter is available here.