The U.S. Bureau of Labor Statistics (BLS) recently reported that more than one half of the union members in the labor force work for government. In fact, 41.1 percent of the government workforce is represented by unions, compared to just 8 percent in the private sector. In the nonpostal federal service, approximately 61 percent of the workforce was represented by unions in 2001 (the latest year for which data are available); about 80 percent of the eligible employees were represented by labor organizations.

Most federal managers, therefore, must deal with a union-represented workforce. To improve labor-management relations in the federal service, President Obama issued Executive Order (E.O.) 13522 on December 9, 2009. Reminiscent of former President Clintons labor-management partnership edict of October 1, 1993, Obamas order links labor-management relations to the goal of improving agency performance.

Executive Order 13522

Titled Creating Labor-Management Forums to Improve Delivery of Government Services, E.O. 13522 mandates the creation of such forums throughout the federal service to involve unions in making decisions to improve productivity and save money. The order has significant practical implications for federal managers and the union representatives in their agencies.

New Policy

E.O. 13522 consists of five sections. Section 1 sets the policy and its underlying rationale: The purpose of this order is to establish a cooperative and productive form of labor-management relations throughout the executive branch. Eliciting labors involvement provides an essential source of frontline ideas and information about the realities of delivering government services to the American people. Cooperative forums will promote satisfactory labor relations and improve the productivity and effectiveness of the federal government.

New Council

Section 2 of the order establishes the 17-person National Council on Federal Labor-Management Relations (Council). Co-chaired by the director of the U.S. Office of Personnel Management (OPM) and the deputy director for management of the U.S. Office of Management and Budget (OMB), it includes seven union representatives, nine management officials, and one neutral.

It is charged to advise the president on labormanagement relations; support the creation of labor-management forums in the various departments and agencies of the executive branch; develop measures and metrics to evaluate these forums; and develop innovative ways to improve government performance.

Labor-Management Forums

Section 3 requires agency and department heads to establish labor-management forums at appropriate levels in their respective agencies to help identify problems and propose solutions to better serve the public and agency missions. It enables employeesthrough their union representativesto pre-decisional involvement in all workplace matters to the fullest extent practicable, regardless of whether the matters are negotiable subjects of bargaining under the Federal Service Labor Management Relations Statute (FSLMRS Title VII of the 1978 Civil Service Reform Act; U.S.C. 7106).

Agency and department heads are also required to submit plans on how they will conduct a baseline assessment of labor-management relationsin their agencies; establish labor-management forums; and develop metrics to monitor improvements in areas such as labor-management satisfaction, productivity gains, [and] cost savings.

These plans are to be submitted to the council for approval within 90 days of the issuance of the executive order. The council must review and approve or reject the plans within 30 days of receipt. Rejected plans need to be revised within the next 30 days. Thus, agencies and departments with union representatives must have certified plans in place within 150 days of the order.

Pilot Projects

Section 4 provides for the establishment of several pilot projects on the negotiation of so-called permissive items under the FSLMRS. Section 7106(b)(1) of that statute grants agencies the authority to elect to negotiate items pertaining to the numbers, types, and grades of employees or positions assigned to any organizational subdivision, work project, or tour of duty, orthe technology, methods, and means of performing work.

The order charges the council to develop recommendations on establishing and evaluating these pilots within 150 days of its issuance and to make an evaluative report to the president no later than 18 months after the implementation of the pilots.

General Provisions

Section 5 is a set of general provisions that protects existing collective bargaining agreements; the authority of agency and department heads under law; and the functions of the director of OMB with respect to budgetary, administrative, or legislative proposals. It also states that the order does not create any right to administrative or judicial review.

Joint Memorandum

On January 29, 2010, OPM Director John Berry and OMB Deputy Director for Management Jeffrey D. Zients issued a joint memorandum to agency and department heads on Follow-Up on Executive Order concerning Labor-Management Forums. It reiterated the requirement that these heads submit their plans to implement labormanagement forums (LMFs) to the council by March 9, 2010, for review and certification by May 8, 2010.

The memorandum instructed heads to include three basic elements:

  • the process the agency will undertake to design and implement LMFs at appropriate levels
  • the process the LMF will undertake to develop a limited number of mission-linked or processimproving performance goals
  • a plan for developing agency or bargaining unitspecific metrics to monitor progress toward thesegoals and performance trends in key areas such a labor-management satisfaction, productivity, cost savings, and other measures as identified by the relevant LMF participants.

Executive Order 13522 is an important opportunity to improve the quality of labor-management relations and tie such relations to agency performance. The devil, as always, is in the details, and we encourage the parties to pay careful attention to how they establish and conduct their LMFs.