Presidential Executive Order 13836 (Donald Trump, 2018)
| Executive orders related to the administrative state
President Trump issued this and two other executive orders on May 25, 2018, aimed at improving efficiency and accountability within the federal civil service: Executive Order 13837 • Executive Order 13836 • Executive Order 13839 |
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Executive Order 13836: Developing Efficient, Effective, and Cost-Reducing Approaches to Federal Sector Collective Bargaining was a presidential executive order issued by President Donald Trump (R) in May 2018 that aimed to streamline processes for federal collective bargaining negotiations. The order put forth negotiating timelines and established the Interagency Labor Relations Working Group, among other provisions. The executive action broadly sought to "assist executive departments and agencies in developing efficient, effective, and cost-reducing collective bargaining agreements," according to the order.[1][2]
President Joe Biden (D) revoked E.O. 13836 on January 22, 2021, via E.O. 14003.
Background
President Trump issued three executive orders on May 25, 2018, aimed at improving efficiency and accountability within the federal civil service. Executive Order 13836, titled "Developing Efficient, Effective, and Cost-Reducing Approaches to Federal Sector Collective Bargaining," sought to streamline processes for federal collective bargaining negotiations. The order encouraged agencies to finalize union negotiations within a year and aimed to promote transparency by requiring agencies to make union contracts available online for public access. The order also created the Interagency Labor Relations Working Group in order to facilitate communication among agencies engaged in collective bargaining.[1][3]
Federal agencies spent roughly $16 million on salaries for union negotiators in 2016, according to a May 2018 press release from the U.S. Office of Personnel Management (OPM). The OPM further stated that a one-year timetable for contract negotiations could help to minimize taxpayer costs associated with union negotiators' salaries.[2]
Response
The Government Business Council conducted a flash poll on June 5-6, 2018, which found that "51 percent of federal workers support or strongly support making it easier to remove poorly performing or malfeasant employees. Another 24 percent oppose such efforts, while 24 percent said they were neutral or didn’t know about the changes."[4]
On June 11, 2018, A group of 21 Republican members of the U.S. House of Representatives sent a letter to Trump requesting that he rescind the executive orders. The letter stated, "Federal workers have taken an oath of service to our great nation, and we take very seriously their duty to provide the American public with quality services. That is why we believe that now, more than ever, it is important to uphold and strengthen the working relationships between federal workers and agency leadership."[5]
A group of 23 Democratic House members sent a similar letter to Trump on June 14, 2018. The letter stated, "Your executive orders are the most direct and systematic attack on whistleblower protections in a generation. They strip federal employees of procedures that were put in place to protect them against retaliation by their superiors—who are often political appointees—and they deny whistleblowers assistance from their union representatives when they are punished for speaking the truth."[6]
Lawsuit
- See also: Civil Service Reform Act
Three separate lawsuits aimed at blocking Trump's civil service executive orders were filed by the American Federation of Government Employees, the National Treasury Employees Union, and a coalition of 13 smaller public sector unions. The legal challenges claimed that Trump’s executive orders conflict with certain collective bargaining provisions of the Civil Service Reform Act and prevent unions from performing their statutorily-required representational duties. Click here for more information.[7]
Provisions
Purpose
E.O. 13836 put forth the following stated purpose:[1]
| “ | The Federal Government must do more to apply the [Federal Service Labor‑Management Relations 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.[1][8] | ” |
Interagency Labor Relations Working Group
The order created the Interagency Labor Relations Working Group made up of the OPM director and representatives from agencies with at least 1,000 employees under a collective bargaining agreement. Smaller agencies may participate at their discretion and with approval from the OPM. The group must provide collective bargaining assistance to the OPM director by gathering information to support negotiation efforts, developing model ground rules for negotiations, and facilitating communication among agencies working with the same labor organization to find common solutions.[1]
Collective bargaining objectives
The order required the head of each agency engaged in collective bargaining to prepare a report on the collective bargaining agreement at least one year before their expiration or renewal date. The report must have recommended new or revised language for use during negotiations to further support the goals of the order. During negotiations, agencies must have worked to advance the goals of the order, consider advice from the Interagency Labor Relations Working Group, and ensure that agency negotiating teams include participation from management and supervisors.[1]
Collective bargaining procedures
The order put forth the following procedures, guidelines, and timeframes for collective bargaining negotiations:[1]
| “ | 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.[1][8] | ” |
Public accessibility
Agencies were required to submit information about each collective bargaining agreement currently in effect and its expiration date to the OPM Director. The OPM director was required to make each collective bargaining agreement publicly accessible through the internet.[1]
Noteworthy events
Legal challenges to President Trump's civil service executive orders (2018-2019)
- See also: Civil Service Reform Act, E.O. 13836, E.O. 13837, and E.O. 13839
The following timeline identifies key events in a 2018-2019 lawsuit, American Federation of Government Employees, AFL-CIO, et. al. v. Trump, brought by a group of federal employee unions against President Donald Trump's (R) three civil service executive orders issued in May 2018: Executive Order 13837, Executive Order 13836, and Executive Order 13839.
October 2019: Injunction expires, agencies allowed to implement executive orders
The injunction blocking provisions of President Trump's three civil service executive orders expired on October 2, 2019. The United States Court of Appeals for the District of Columbia Circuit on October 3 issued a mandate to implement its July 16 decision vacating the district court ruling and allowing federal agencies to fully implement the orders.[9][10]
September 2019: D.C. Circuit declines rehearing request
The United States Court of Appeals for the District of Columbia Circuit issued an order on September 25, 2019, declining to rehear American Federation of Government Employees, AFL-CIO, et. al. v. Trump before the full court. The order did not provide a reason for the decision.[1]
August 2019: Unions file for rehearing en banc before full D.C. Circuit
Federal employee unions challenging Trump's three civil service executive orders filed a petition on August 30, 2019, requesting a rehearing of American Federation of Government Employees, AFL-CIO, et. al. v. Trump before the full United States Court of Appeals for the District of Columbia Circuit. A three-judge panel of the D.C. Circuit held in July that the court did not have jurisdiction to rule on the case because the Federal Service Labor-Management Relations Statute requires labor practice complaints to be brought before the Federal Labor Relations Authority (FLRA).[11]
August 2019: SEIU files new lawsuit claiming civil service executive orders exceed president's constitutional authority
A chapter of the Service Employees International Union (SEIU) representing U.S. Department of Veterans Affairs employees in Buffalo, New York, filed a lawsuit in the United States District Court for the Western District of New York on August 13, 2019, arguing that President Trump's three civil service executive orders exceeded the president's constitutional authority and violated the Civil Service Reform Act. The union claimed that the district court had jurisdiction over the case in part because the FLRA had lacked a general counsel for almost two years—preventing the agency from hearing unfair labor practice complaints.[12]
Because the United States Court of Appeals for the 2nd Circuit has appellate jurisdiction over the United States District Court for the Western District of New York, the D.C. Circuit's July 2019 decision upholding the civil service executive orders was not controlling on the case.[12]
July 2019: D.C. Circuit panel reverses district court ruling, holds district court lacked jurisdiction to issue injunction
A three-judge panel of the United States Court of Appeals for the District of Columbia Circuit on July 16, 2019, reversed and vacated the district court ruling. Judges Thomas Griffith, Srikanth Srinivasan, and Arthur Randolph held that the district court did not have jurisdiction to rule on the merits of the executive orders and that the plaintiffs should have brought the case before the FLRA as required by the Federal Service Labor-Management Relations Statute.[13][14]
Trump administration officials on July 23, 2019, asked the D.C. Circuit to immediately lift the injunction blocking enforcement of the three civil service executive orders rather than wait for the 45-day grace period for rehearing requests to expire. The court denied the administration's request on August 14, 2019.[15][16]
April 2019: D.C. Circuit hears oral arguments in appeal, DOJ claims district court lacked jurisdiction in case
The United States Court of Appeals for the District of Columbia Circuit heard oral arguments in the appeal on April 4, 2019. An attorney for the U.S. Department of Justice (DOJ) argued that the federal courts lacked jurisdiction in the case and that the plaintiffs should have filed an unfair labor practices complaint with the Federal Labor Relations Authority (FLRA) instead. An attorney representing the union groups countered that the FLRA lacked the authority to weigh in on governmentwide rules that are not subject to collective bargaining negotiations.[17][18]
November 2018: OPM instructs agencies to comply with effective executive order provisions
The Office of Personnel Management (OPM) released a memo in November 2018 instructing federal agencies to comply with the provisions of the civil service executive orders that remained in effect, including guidelines related to employee discipline and the use of official union time.[19]
September 2018: DOJ appeals district court ruling
The DOJ appealed the district court's ruling on September 25, 2018. The notice of appeal was filed with the United States Court of Appeals for the District of Columbia Circuit. Oral argument in the case was scheduled for April 4, 2019.[20][21]
August 2018: District court ruling strikes provisions of executive orders, cites conflict with federal statute
Judge Ketanji Brown Jackson of the United States District Court for the District of Columbia struck down several provisions of President Trump's civil service executive orders in a ruling issued on August 25, 2018. The stricken provisions included components of the executive orders that Brown Jackson claimed conflicted with federal statute, such as limitations on the amount of taxpayer-funded time that full-time federal employees can dedicate to union activities, a reduction in the amount of time that poor-performing employees can demonstrate improvement, and certain restrictions on workplace issues that federal agencies can negotiate with unions.[22][23]
A DOJ representative responded to the ruling on August 25, stating that the DOJ was "reviewing the decision and considering our next steps." Then-OPM Director Jeff Pon issued a memo to all federal agencies on August 29 stating that the OPM would comply with Jackson's order and encouraging compliance by other agencies. The OPM also rescinded agency guidance related to the blocked provisions of the executive orders.[22][24]
May 2018: Unions file suit against civil service executive orders, claim orders are unconstitutional and violate federal statute
The American Federation of Government Employees (AFGE) filed a lawsuit challenging the constitutionality of Executive Order 13837 on May 30, 2018. The lawsuit claimed that the order violates freedom of association protections under the First Amendment and alters sections of the Federal Service Labor-Management Relations Statute—Title VII of the Civil Service Reform Act of 1978—without congressional action.[25][26][27]
Brown Jackson consolidated AFGE's lawsuit with two other lawsuits challenging Trump's civil service executive orders (E.O. 13837, E.O. 13836, and E.O. 13839) filed by the National Treasury Employees Union and a coalition of 13 smaller public sector unions. A hearing in the case took place on July 25, 2018.[28]
See also
External links
- Executive Order 13836: Developing Efficient, Effective, and Cost-Reducing Approaches to Federal Sector Collective Bargaining (2018)
- RegInfo.gov
- Regulations.gov
- Search Google News for this topic
Footnotes
- ↑ 1.0 1.1 1.2 1.3 1.4 1.5 1.6 1.7 1.8 1.9 WhiteHouse.gov, "Executive Order Developing Efficient, Effective, and Cost-Reducing Approaches to Federal Sector Collective Bargaining," May 25, 2018 Cite error: Invalid
<ref>tag; name "order" defined multiple times with different content - ↑ 2.0 2.1 Office of Personnel Management, "OPM Director Implementing President’s New Policies to Elevate Federal Government Operations and Protect American Taxpayers," May 25, 2018
- ↑ WhiteHouse.gov, "President Donald J. Trump Is Reforming the Civil Service to Work for the American People," May 25, 2018
- ↑ Government Executive, "Survey: Half of Feds Support White House Attempts to Ease Firing Process," June 8, 2018
- ↑ Government Executive, "Republican Lawmakers Ask Trump to Repeal Workforce Executive Orders," June 13, 2018
- ↑ Government Executive, "House Democrats Join Fight Against Workforce Executive Orders," June 14, 2018
- ↑ Government Executive, "Federal Judge Consolidates Lawsuits on Workforce Executive Orders, Schedules Hearing," June 19, 2018
- ↑ 8.0 8.1 Note: This text is quoted verbatim from the original source. Any inconsistencies are attributable to the original source.
- ↑ FedSmith, "Executive Orders Allowed to Take Effect After Injunction is Lifted," October 2, 2019
- ↑ United States Court of Appeals for the District of Columbia Circuit, "Mandate," October 3, 2019
- ↑ Government Executive, "Unions Request Rehearing of Trump's Federal Workforce Orders Case," August 30, 2019
- ↑ 12.0 12.1 Government Executive, "Another Union Sues to Block Trump Workforce Orders," August 16, 2019
- ↑ The Washington Post, "In win for Trump administration, appeals court stymies union challenge to civil service restrictions," July 16, 2019
- ↑ United States Court of Appeals for the District of Columbia Circuit, "American Federation of Government Employees, AFL-CIO, et al. v. Trump," July 16, 2019
- ↑ Government Executive, "Trump Administration Asks Court to Allow Agencies to Implement Workforce Orders Immediately," July 24, 2019
- ↑ Government Executive, "Court: Injunction Blocking Workforce Executive Orders Will Remain in Place," August 14, 2019
- ↑ Government Executive, "Judges Fixate on Jurisdictional Question in Appeal of Decision Invalidating Trump Workforce Orders," April 4, 2019
- ↑ Reuters, "D.C. Circuit hears Trump administration's bid to revive civil service executive orders," April 4, 2019
- ↑ FEDweek, "Enforce Parts of Orders Not Blocked, OPM Tells Agencies," November 13, 2018
- ↑ Government Executive, "Trump Administration Appeals Court Ruling On Workforce EOs," September 25, 2018
- ↑ United States Court of Appeals for the District of Columbia Circuit, "Order No. 18-5289," February 19, 2019
- ↑ 22.0 22.1 The Wall Street Journal, "Judge Curbs Trump Orders That Made It Easier to Fire Federal Workers," August 25, 2018
- ↑ Government Executive, "Judge Strikes Down Trump Executive Orders Limiting Federal Employee Union Bargaining," August 25, 2018
- ↑ Office of Personnel Management, "Updated Guidance Relating to Enjoinment of Certain Provisions of Executive Orders 13836, 13837, and 13839," August 29, 2018
- ↑ Government Executive, "Largest Federal Employee Union Sues to Block Official Time Executive Order," May 31, 2018
- ↑ UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA, "AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO vs. DONALD TRUMP," May 30, 2018
- ↑ Common Dreams, "'This Is a Democracy, Not a Dictatorship': Federal Workers Union Sues Donald Trump," May 31, 2018
- ↑ Government Executive, "Federal Judge Consolidates Lawsuits on Workforce Executive Orders, Schedules Hearing," June 19, 2018
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