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
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.
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
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.
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
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.
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.
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.
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.