Comparison Of Two Executive Orders

By Robert Gilson: Provided as a service to readers of FedSmith.com Clinton Executive Order Proposed Obama Executive Proposed Obama Executive 12871 Order: Version 1 Order: Version 2 Labor-Management Creating Labor-Management Partnerships Forums to Improve Delivery of Same as Version 1 Government Services The involvement of Federal Government employees and their union representatives is essential to achieving the National Performance Review’s Government reform objectives. Only by changing the nature of Federal labor management relations so that managers, employees, and employees’ elected union representatives serve as partners will it be possible to design and implement comprehensive changes necessary to reform Government. Labor management partnerships will champion change in Federal Government agencies to transform them into organizations capable of delivering the highest quality services to the American people.

Federal employees and their union representatives are an essential source of front-line ideas and information about the realities of delivering government services to the American people. A nonadversarial forum for managers, employees, and employees' union representatives to proactively discuss government operations will compliment the existing collective bargaining process and facilitate the design and implementation of the comprehensive changes necessary to increase the effectiveness and efficiency of Government. LaborManagement Forums will allow managers and employees to collaboratively champion change in the Federal Government so that agencies can deliver the highest quality services to the American people.

Federal employees and their union representatives are an essential source of front-line ideas and information about the realities of delivering government services to the American people. A nonadversarial forum for managers, employees, and employees' union representatives to proactively discuss government operations will facilitate the design and implementation of changes to promote satisfactory labor relations and improve productivity and effectiveness in the Federal Government. Labor-Management Forums, as complements to the existing collective bargaining process, will allow managers and employees to collaboratively champion change in the Federal Government so that agencies can deliver the highest quality services to the American people.

By the authority vested in me as President by the Constitution and the laws of the United States, including section 301 of title 3, United States Code, and in order to establish a new form of labormanagement relations throughout the executive branch to promote the principles and recommendations adopted as a result of the National Performance Review, it is hereby ordered:

By the authority vested in me as President by the Constitution and the laws of the United States, including section 301 of title 3, United States Code, and in order to establish a cooperative and productive form of labormanagement relations throughout the Executive Branch, it is hereby ordered:

By the authority vested in me as President by the Constitution and the laws of the United States, and in order to establish a cooperative and productive form of labormanagement relations throughout the Executive Branch, it is hereby ordered:

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Section 1. The National Partnership Council.

Section 1: The National Council on Federal Labor Relations a. Establishment and Membership (a) Establishment and There is established the National Membership. There is Council on Federal Labor established the National Relations ("Council"). The Partnership Council Council shall comprise the ("Council"). The Council shall following members appointed by comprise the following the President: members appointed by the 1. Director of the Office of President: Personnel Management ("OPM"); 2. Deputy Director for (1) Director of the Office of Management, Office of Personnel Management Management and Budget; ("OPM"); 3. Chair, Federal Labor Relations (2) Deputy Secretary of Authority; Labor; 4. President, American (3) Deputy Director for Federation of Government Management, Office of Employees, AFL- CIO; Management and Budget; 5. President, National Federation (4) Chair, Federal Labor of Federal Employees; Relations Authority; 6. President, National Treasury (5) Federal Mediation and Employees Union; Conciliation Director; 7. President, International (6) President, American Federation of Professional and Federation of Government Technical Engineers, AFLEmployees, AFL–CIO; CIO; (7) President, National 8. The head of a labor union that Federation of Federal represents federal employees Employees; and is not otherwise (8) President, National represented on the Council; Treasury Employees Union; (9) Secretary-Treasurer of the 9. A deputy Secretary or other officer with department- or Public Employees agency-wide authority from Department, AFL–CIO; and four executive departments or (10) A deputy Secretary or agencies (hereafter collectively other officer with department"agency"), not otherwise or agencywide authority from represented on the Council; two executive departments or and agencies (hereafter One elected office holder from the collectively "agency"), not Senior Executives Association. otherwise represented on the One elected office holder from the Council. Federal Managers Association. Members shall have 2-year terms on the Council, which Members shall serve at the may be extended by the pleasure of the President. President.

Section 1. The National Council on Federal Labor Relations a. Establishment and Membership There is established the National Council on Federal Labor Relations ("Council"). The Council shall comprise the following members: 1.Director of the Office of Personnel Management ("OPM"); 2.Deputy Director for Management, Office of Management and Budget (“OMB”); 3.Chair, Federal Labor Relations Authority; 4.President, American Federation of Government Employees, AFLCIO; 5.President, National Federation of Federal Employees; 6.President, National Treasury Employees Union; 7.President, International Federation of Professional and Technical Engineers, AFL-CIO; 8.The heads of two other labor unions that represent federal employees and are not otherwise represented on the Council; 9.A deputy Secretary or other officer with department- or agency-wide authority from four executive departments or agencies (hereafter collectively "agency"), not otherwise represented on the Council; President, Senior Executives Association; and President, Federal Managers Association. Members shall have 2-year terms on the Council, which may be extended by the President. 2

(b) Responsibilities and Functions. The Council shall advise the President on matters involving labor-management relations in the executive branch. Its activities shall include:

b. Responsibilities and Functions

a.

Responsibilities and Functions

The Council shall advise the President on matters involving labor-management relations in the executive branch. Its activities shall include:

The Council shall advise the President on matters involving labor-management relations in the executive branch. Its activities shall include:

(1) supporting the creation of 1. supporting the creation of agency level laborlabor-management management forums and partnerships and promoting promoting partnership efforts partnership efforts in the between labor and executive branch, to the extent management in the executive permitted by law; branch, to the extent permitted (2) proposing to the President by law; by January 1994 statutory 2. collecting and disseminating changes necessary to achieve information about, and the objectives of this order, providing guidance on laborincluding legislation management improvement consistent with the National efforts in the executive branch, Performance Review’s including results achieved, to recommendations for the the extent permitted by law; creation 3. utilizing the expertise of of a flexible and responsive individuals both within and hiring system and the reform outside the Federal of the General Schedule Government to foster classification system; successful labor-management (3) collecting and relations arrangements. disseminating information about, and providing guidance on, partnership efforts in the executive branch, including results achieved, to the extent permitted by law; (4) utilizing the expertise of individuals both within and outside the Federal Government to foster partnership arrangements; and (5) working with the President’s Management Council toward reform consistent with the National Performance Review’s recommendations throughout the executive branch.

1. supporting the creation of agency level labormanagement forums and promoting partnership efforts between labor and management in the executive branch, to the extent permitted by law; 2. collecting and disseminating information about, and providing guidance on labor-management improvement efforts in the executive branch, including results achieved, to the extent permitted by law; 3. utilizing the expertise of individuals both within and outside the Federal Government to foster successful labor-management relations, including through training of agency personnel in methods of dispute resolution and cooperative methods of labormanagement relations; and 4. providing recommendations to the President for implementation of several pilot programs within the Executive branch, described in Section 3 of this order, for bargaining over subjects set forth in 5 U.S.C. § 7106(b)(1).

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(c) Administration.

c. Administration

(1) The President shall designate a member of the Council who is a full-time Federal employee to serve as Chairperson. The responsibilities of the Chairperson shall include scheduling meetings of the Council. (2) Council shall seek input from nonmember Federal agencies, particularly smaller agencies. It also may, from time to time, invite experts from the private and public sectors to submit information. The Council shall also seek input from companies, nonprofit organizations, State and local governments, Federal Government employees, and customers of Federal Government services, as needed. (3) To the extent permitted by law and subject to the availability of appropriations, OPM shall provide such facilities, support, and administrative services to the Council as the Director of OPM deems appropriate. (4) Members of the Council shall serve without compensation for their work on the Council, but shall be allowed travel expenses, including per diem in lieu of subsistence, as authorized by law, for persons serving intermittently in Government service. (5) All agencies shall, to the extent permitted by law, provide to the Council such assistance, information, and advice as the Council may request.

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The President shall designate the Director of OPM to serve as the Chairperson of the Council. The responsibilities of the Chairperson shall include scheduling meetings of the Council. The Council shall seek input from nonmember Federal agencies, particularly smaller agencies. It also may, from time to time, invite experts from the private and public sectors to submit information. The Council shall also seek input from Federal manager and professional associations, companies, nonprofit organizations, State and local governments, Federal employees, and customers of Federal services, as needed. To the extent permitted by law and subject to the availability of appropriations, OPM shall provide such facilities, support, and administrative services to the Council as the Director of OPM deems appropriate. Members of the Council shall serve without compensation for their work on the Council, but may be allowed travel expenses, including per diem in lieu of subsistence, as authorized by law, for persons serving intermittently in Government service. All agencies shall, to the extent permitted by law, provide to the Council such

b. Administration 1. The President shall designate the Director of OPM and the Deputy Director for Management at OMB to serve as Co-Chairs of the Council. The Co-Chairs shall convene and preside at meetings of the Council, determine its agenda, and direct its work. 2. The Council shall seek input from nonmember Federal agencies, particularly smaller agencies. It also may, from time to time, invite persons from the private and public sectors to submit information. The Council shall also seek input from Federal manager and professional associations, companies, nonprofit organizations, State and local governments, Federal employees, and customers of Federal services, as needed. 3. To the extent permitted by law and subject to the availability of appropriations, OPM shall provide such facilities, support, and administrative services to the Council as the Director of OPM deems appropriate. 4. Members of the Council shall serve without compensation for their work on the Council, but may be allowed travel expenses, including per diem in lieu of subsistence, as authorized by law for persons serving intermittently in Government service (5 U.S.C. 5701-5707), consistent with the availability of funds. 5. All agencies shall, to the extent permitted by law, 4

assistance, information, and advice as the Council may request.

(d) General. (1) I have determined that the Council shall be established in compliance with the Federal Advisory Committee Act, as amended (5 U.S.C. App. 2). (2) Notwithstanding any other executive order, the functions of the President under the Federal Advisory Committee Act, as amended, except that of reporting to the Congress, that are applicable to the Council, shall be performed by the Director of OPM, in accordance with guidelines and procedures issued by the Administrator of General Services. (3) The Council shall exist for a period of 2 years from the date of this order, unless extended. (4) Members of the Council

d. General

provide to the Council such assistance, information, and advice as the Council may request. 6. Insofar as the Federal Advisory Committee Act, as amended (5 U.S.C. App.), may apply to the Council, any functions of the President under that Act, except that of reporting to the Congress, shall be performed by the Director of OPM in accordance with the guidelines that have been issued by the Administrator of General Services. See Below

1. I have determined that the Council shall be established in compliance with the Federal Advisory Committee Act, as amended (5 U.S.C. App. 2). 2. Notwithstanding any other executive order, the functions of the President under the Federal Advisory Committee Act, as amended, except that of reporting to the Congress, that are applicable to the Council, shall be performed by the Director of OPM, in accordance with guidelines and procedures issued by the Administrator of General Services.

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Members of the 5

who are not otherwise officers or employees of the Federal Government shall serve in a representative capacity and shall not be considered special Government employees for any purpose. Sec. 2. Implementation of Labor-Management Partnerships Throughout the Executive Branch. The head of each agency subject to the provisions of chapter 71 of title 5, United States Code shall:

(a) create labor-management partnerships by forming labormanagement committees or councils at appropriate levels, or adapting existing councils or committees if such groups exist, to help reform Government; (b) involve employees and their union representatives as full partners with management representatives to identify problems and craft solutions to better serve the agency’s customers and mission; (c) Provide systematic training of appropriate agency employees (including line managers, first line supervisors, and union representatives who are Federal employees) in consensual methods of dispute resolution, such as alternative dispute resolution techniques

Council who are not otherwise officers or employees of the Federal Government shall serve in a representative capacity and shall not be considered special Government employees for any purpose. Section 2: Implementation of Labor-Management Forums Throughout the Executive Branch

Sec. 2. Implementation of LaborManagement Forums Throughout the Executive Branch.

The head of each agency that is subject to the provisions of chapter 71 of title 5, United States Code, or any other authority permitting employees of such agency to select an exclusive representative, shall:

(a) The head of each agency that is subject to the provisions of chapter 71 of title 5, United States Code, or any other authority permitting employees of such agency to select an exclusive representative, shall:

a. establish agency level labor-management forums by creating labor-management committees or councils at appropriate levels, or adapting existing councils or committees if such groups exist, to help change Government;

(1) establish agency level labor-management forums by creating labor-management committees or councils at appropriate levels, or adapting existing councils or committees if such groups exist, to help reform Government;

b. proactively involve employees and their union representatives as full partners with management representatives to identify problems and craft solutions to better serve the agency's customers and mission;

(2) proactively involve employees and their union representatives as full partners with management representatives to identify problems and craft solutions to better serve the agency's customers and mission;

c. allow employees and their union representatives predecisional involvement on all workplace matters, without regard to whether those matters are negotiable subjects of bargaining under 5 U.S.C. § 7106, and provide adequate information on such matters expeditiously to union representatives where not

(3) allow employees and their union representatives predecisional involvement on matters affecting conditions of employment to the fullest extent practicable, without regard to whether those matters are negotiable subjects of bargaining under 5 U.S.C. § 7106, provide adequate information on such 6

and interest-based bargaining approaches;

prohibited by law.

(d) negotiate over the subjects set forth in 5 U.S.C. 7106(b) (1), and instruct subordinate officials to do the same; and (e) evaluate progress and improvements in organizational performance resulting from the labormanagement partnerships.

(d) negotiate over the subjects set forth in 5 U.S.C. 7106(b) (1), and instruct subordinate officials to do the same; and

Sec. 3. No Administrative or Judicial Review. This order is intended only to improve the internal management of the executive branch and is not intended to, and does not, create any right to

d. evaluate and document, in consultation with union representatives and consistent with the spirit of this order and any further guidance provided by OPM, progress and improvements in employee satisfaction and organizational performance resulting from the labormanagement forums. Section 3: Election to Negotiate

matters expeditiously to union representatives where not prohibited by law, and make a good faith attempt to resolve issues concerning proposed changes in conditions of employment, including those involving the subjects set forth in 5 U.S.C. § 7106(b)(1), through discussions in their labor-management forums; and (4) evaluate and document, consistent with the spirit of this order and any further guidance provided by the Council, progress and improvements in employee satisfaction and organizational performance resulting from the labormanagement forums. See Below

I hereby elect, on behalf of all executive departments and agencies covered by this order, to negotiate over the subjects set forth in 5 U.S.C. § 7106(b)(1). For purposes of proceedings undertaken pursuant to chapter 71 of Title 5, any attempts by department or agency heads or their subordinate officials to revoke my election shall have no force or effect. Agency heads and their subordinates shall carry out this election to bargain in good faith and consistent with FLRA precedent. See Below

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administrative or judicial review, or any other right, substantive or procedural, enforceable by a party against the United States, its agencies or instrumentalities, its officers or employees, or any other person. Section 4: Miscellaneous a. Nothing in this order shall

abrogate any collective bargaining agreements in effect on the date of this order. b. Pursuant to Section 2(d) of this order, each head of an executive department or agency shall submit for approval, within 30 days, a written implementation plan to the Director of OPM. The plan shall: 1. describe how the executive department or agency will conduct a baseline survey of employees and managers engaged in bargaining to assess the current state of labor relations within the department or agency; 2. address how the executive department or agency will develop department-, agencyand/or bargaining unit-specific metrics to monitor improvements in areas such as labormanagement satisfaction, productivity gains, cost savings, and other measures as identified by the relevant labor-management forums participants; 3. confirm that the executive department or agency is committed to bargaining with the exclusive representative(s) of any of its employees over the matters set forth in 5 U.S.C. § 7106(b)(1),

(b) Pursuant to Section 2(a)(4) of this order, each head of an executive department or agency shall submit for approval, within 120 days, a written implementation plan to the Council. The plan shall: (1) describe how the executive department or agency will conduct a baseline survey of employees and managers engaged in bargaining to assess the current state of labor relations within the department or agency; (2) address how the executive department or agency will develop department-, agencyand/or bargaining unit-specific metrics to monitor improvements in areas such as labormanagement satisfaction, productivity gains, cost savings, and other measures as identified by the relevant labor-management forums participants; (3) report the extent to which the executive department or agency has established labormanagement forums, as set 8

consistent with Section 3 of this Order; and 4. explain the executive department’s or agency’s plan for devoting sufficient resources to provide annual reports to the Council pursuant to Section 2.d of this Order. OPM shall review each executive department or agency implementation plan within 30 days of receipt to certify that the plan satisfies all requirements of this order. Plans that are determined to be insufficient will be returned to the executive department or agency with guidance for improvement and resubmission within 30 days. All executive departments or agencies must have a certified implementation plan in place no later than 90 days after the effective date of this order.

forth in Section 2(a)(1) of this order, or may participate in the pilot projects described in Section 3 of this order; and (4) explain the executive department’s or agency’s plan for devoting sufficient resources to provide annual reports to the Council pursuant to Section 2(a) (4) of this Order. The Council shall review each Federal department or agency implementation plan within 30 days of receipt to certify that the plan satisfies all requirements of this order. Plans that are determined to be insufficient will be returned to the Federal department or agency with guidance for improvement and resubmission within 30 days. Each Federal department or agency must have a certified implementation plan in place no later than 180 days after the date of this Order. Sec. 3. Negotiation over Permissive Subjects of Bargaining. The Council shall recommend to the President a plan to establish and evaluate the impact of several pilot projects of specified duration in the Executive branch in which some Federal departments or agencies shall elect to bargain over some or all of the subjects set forth at 5 U.S.C. § 7106(b)(1), up through and including completion of the impasse procedures set forth at 5 U.S.C. § 7119. The plan shall include recommendations for evaluating such pilot projects on the basis, among other things, of their impacts on organizational 9

performance, employee satisfaction, and labor relations of the affected departments or agencies. The plan shall also recommend methods for evaluating the effectiveness of dispute resolution procedures adopted and followed in the course of the pilot projects. Sec. 4. General Provisions. b. Nothing in this order

shall abrogate any collective bargaining agreements in effect on the date of this order. c. Nothing in this order shall be construed to impair or otherwise affect: (i) authority granted by law to an executive department, agency, or the head thereof; or (ii) functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals. d. This order shall be implemented consistent with applicable law and subject to the availability of appropriations. e. This order is intended only to improve the internal management of the executive branch and is not intended to, and does not, create any right to administrative or judicial review, or any other right or benefit, 10

substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.

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