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EXECUTIVE ORDER 13203

Posted 2/16/2007 Printable Fact Sheet

Executive Order 13203 -- Revocation of Executive Order 12871 and Presidential Memorandum Concerning Labor-Management Partnerships

On February 17, 2001, President Bush signed Executive Order (E.O.) 13203, which revoked E.O. 12871. E.O. 12871 required the establishment of labor-management partnerships at appropriate levels and directed heads of agencies to bargain over permissive subjects of bargaining covered by section 7106(b)(1), Title 5 of the U.S. Code.

E.O. 13203 revoked E.O. 12871 in its entirety. Among other things, the National Partnership Council was immediately dissolved. The Presidential Memorandum of October 28, 1999, entitled "Reaffirmation of Executive Order 12871 - Labor-Management Partnerships" was also revoked. The Office of Personnel Management and heads of executive agencies were directed to rescind any orders, rules, regulations, guidelines, or policies implementing or enforcing E.O. 12871 or the Presidential Memorandum. Notably, E.O. 13203 does state that "nothing in this order shall abrogate any collective bargaining agreement in effect on the date of this order."

Questions and Answers Concerning E.O. 13203

When is E.O. 13203 effective?
E.O. 13203 was effective February 17, 2001.

If we have an existing partnership council, does this mean that we no longer have to partner with our union?
Many activities that have a partnership with their local union have recognized this relationship through their collective bargaining agreement. Section 4 of E.O. 13203 recognizes the existing agreements by stating "nothing in this order shall abrogate any collective bargaining agreements in effect on the date of this order". Therefore, you must honor any contractual agreement reached with your union on the establishment and administration of a partnership council.

Some activities have separate "partnership agreements" instead of addressing it in the collective bargaining agreement. However, these partnership agreements can be just as binding as your regular collective bargaining agreement. The Federal Labor Relations Authority (FLRA) has previously ruled that agreements reached in partnership can be binding agreements. See NATCA, Local SDF vs. DOT, FAA, 53 FLRA 312 (August 29, 1997). In this particular case, the FLRA noted, "the fact that the [negotiation] sessions were conducted in a partnership atmosphere, as opposed to 'traditional' collective bargaining, does not preclude a conclusion that the sessions constituted collective bargaining within the meaning of the Federal Service Labor-Management Relations Statute (Statute). The definition of collective bargaining set forth in [5 U.S.C.] section 7103(a)(1) does not prescribe any particular methods in which collective bargaining must occur. It is well recognized that collective bargaining may occur in a variety of ways, including the use of collaborative or partnership methods."

Of course, the parties should carefully review the language of their collective bargaining agreement or partnership agreement to determine its applicability given the new Executive Order.

We have a partnership council, but we have never signed a formal agreement recognizing this arrangement or even acknowledged this in our collective bargaining agreement. Since we do not have a written agreement, do we have to continue the partnership council with the union?
While you may not have a written agreement, you may have established a past practice with your union concerning the establishment of a partnership council. If you wish to terminate the past practice, there are still obligations you must meet. Specifically, the FLRA has ruled that "where a condition of employment is established for unit employees through past practice or agreement of the parties, changes may not be made in the condition of employment by the agency involved without fulfilling its bargaining obligations." See U.S. Department of Labor and AFGE, National Council of Field Labor Locals, Local 1748, 38 FLRA 899 (December 13, 1990). Therefore, you must notify the union of your intention to discontinue the past practice and provide them a reasonable opportunity to request and conduct appropriate bargaining on this matter.

We currently do not have a partnership council, but we have been considering the establishment of one. Does this new Executive Order mean we are prohibited from partnering with our union?
E.O. 13203 means that agencies are no longer required to partner with their local union. The decision about what form your labor relationship should take is to be decided by the parties in the relationship.

Also, the Orderis does not preclude your local union from proposing that you establish a partnership council or labor-management committee to deal on matters relating to bargaining unit employees' conditions of employment. The FLRA has previously ruled the establishment of joint labor-management committees is negotiable to the extent that such committees are a forum for the union to express its views rather than interjecting itself into the deliberative process by which management exercises its rights. See AFGE, Local 2761 and U.S. Army Adjutant General Publication Center, 14 FLRA 438 (May 6, 1984). See also NFFE Local 2052 and Bureau of Land Management, 30 FLRA 797 (December 31, 1987).

Prior to E.O. 12871, there was no requirement to establish partnership councils or labor-management committees. However, many activities and their local unions chose to establish such relationships focusing on collaboration by working together to identify problems and develop joint solutions as they relate to conditions of employment. It should be noted that 5 U.S.C. section 7101 states that the employees' right to participate through labor organizations in decisions which affect them "facilitates and encourages the amicable settlement of disputes between employees and their employers involving conditions of employment" and "labor organizations and collective bargaining in the civil service are in the public interest." Many organizations and their unions took a pro-active approach in response to this statutory finding by establishing labor-management councils and committees. There was not a requirement to do so prior to E.O. 12871, but many saw the value in such relationships. From the perspective of the Department of Defense, this determination now rests with the local parties as it did prior to E.O. 12871.

Is there still a requirement to bargain over the permissive topics covered by 5 USC section 7106(b)(1)?
There is no longer an Executive Order requirement to bargain over permissive topics covered by 5 USC section 7106(b)(1). However, check your collective bargaining agreement or your partnership agreement to determine if you have contractually agreed to bargain over these topics. You may have contractually agreed to bargain over such matters and will continue to be obligated to bargain over such matters and must continue to do so until the expiration of your agreement. until such time you renegotiate your agreement. In one case, the FLRA upheld an arbitrator's decision that enforced a contractual election to bargain. The FLRA noted "when a provision that concerns 7106(b)(1) matters is included in an agreement that provision becomes enforceable through grievance arbitration...Once the parties have defined their bargaining obligations through an agreement, the issue of whether the parties have complied with the agreement becomes a matter of contract interpretation for the arbitrator." See Social Security Administration and AFGE, 55 FLRA 1073 (November 12, 1999).

If you have no contractual agreement or partnership agreement or past practice established on bargaining over permissive topics, then it is entirely up to local management to elect to bargain over such matters or elect not to bargain over such matters.

Our agreement states that we will bargain over permissive topics in accordance with E.O. 12871. Since E.O. 12871 no longer exists and we specifically reference it in our agreement, does this mean we no longer have to bargain over these topics?
It depends. A simple reference to E.O. 12871 in your agreement does not necessarily mean that an arbitrator will interpret the language to be null and void because E.O. 12871 has been revoked. While the language may have evolved from the requirements of the E.O. 12871, an arbitrator may still view such language to operate independently. Thus, the revocationexistence of

E.O. 12871 may not impact an arbitrator's interpretation of your agreement. The arbitrator will consider documentation and testimony of both union and management on the intent of such language.

Some agreements are very clear in their intent and state that bargaining over permissive topics will only occur as long as E.O. 12871 remains effective. However, most agreements that do make reference to E.O. 12871 only refer to it in more general terms leaving such contract language open to interpretation, thus subject to dispute in the negotiated grievance procedure. If you believe that your language permits you to decline to negotiate permissive subjects once E.O. 12871 is revoked and you wish to decline such requests, then the best course of action is to notify the union that you will no longer negotiate these subjects due to the revocation of E.O. 12871. You must then provide the union an opportunity to request and conduct appropriate bargaining on this change.

If we have a contractual obligation to bargain over permissive topics, how long are we obligated to bargain over such matters?
The FLRA has ruled that once a provision concerning permissive topics of bargaining is included in a collective bargaining agreement, the provision is enforceable through grievance arbitration. See Department of Labor, OSHA and National Council of Field Labor Locals, 34 FLRA 573 (January 24, 1990). Therefore, you are obligated to follow such language until your agreement expires or comes up for renewal. It should be noted that the FLRA has ruled that upon the expiration or renewal of an agreement, mandatory subjects of bargaining continue to the maximum extent possible, but and either party may unilaterally terminate permissive subjects of bargaining. See HQ Air Force Materiel Command and AFGE, Council 214, 49 FLRA 1111 (May 25, 1994). However, if you elect to unilaterally terminate such provisions upon expiration of the agreement, you must give the union notice that explicitly contains a statement of intent to terminate such provisions dealing with permissive bargaining subjects and be open to appropriate impact and implementation bargaining.

Are we now prohibited from receiving training on various types of consensual methods of dispute resolution related to partnership as originally required by E.O. 12871?
E.O. 13203 does not require agencies to provide such training unlike E.O. 12871. However, it does not prohibit you from receiving such training if you continue to partner with your union. The decision to receive this training is left up to you. Keep in mind that proposals for certain non-job related training have been found negotiable by the Authority.

It should also be noted that the Administrative Dispute Resolution Act of 1996, Public Law 104-320, remains effective. It is codified at Title 5, Subchapter IV. Specifically, 5 U.S.C. section 573(e) provides that an agency may enter into a contract with any person for training in connection with alternative means of dispute resolution. Partnership or labor-management committees utilize such techniques in resolving problems identified by the partnership council.

Our component headquarters previously issued policy and guidance concerning partnership as it relates to E.O. 12871. Will this guidance still be applicable?
E.O. 13203 directs the heads of executive agencies to promptly move to rescind any orders, rules, regulations, guidelines, or policies implementing or enforcing Executive Order 12871 to the extent consistent with law. Therefore, any higher headquarters' guidance on this matter will be rescinded.

However, be careful if you are considering rescinding all partnership guidance. Some local partnership councils have jointly developed local guidance on partnership that is applicable only to that partnership council where the union and management otherwise have a bargaining relationship. It would be up to the local partnership council to determine whether it is appropriate to rescind or change such guidance in light of E.O. 12871 being revoked. Further, where such guidance has been negotiated by the parties, it may be enforceable for the life of the collective bargaining agreement. Unilateral action to terminate negotiated partnership guidance impacting on bargaining unit employees' conditions of employment may be grounds for an unfair labor practice.

Where can we find a copy of E.O. 13203?
A copy of the order can be obtained from the White House web site at
www.whitehouse.gov/news/releases/2001/02/20010221-1.html

If you have additional questions about E.O. 13203 and its impact on partnership, please contact the Field Advisory Services Labor Team at (703) 696-6301, Team 3. Our DSN is 426-6301.







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