The White House has issued a Presidential Memorandum targeting collective bargaining agreements (CBAs) finalized in the last month of a departing administration. This action aims to prevent what the President describes as attempts to “harm” the incoming administration by locking in policies that constrain presidential authority. This analysis will examine the key provisions of this Presidential Action, its potential impact, and the political ramifications of this decision.
This Presidential Memorandum, titled “Limiting Lame-Duck Collective Bargaining Agreements That Improperly Attempt to Constrain the New President,” seeks to restrict the ability of executive departments and agencies to enter into or modify collective bargaining agreements with federal employees in the 30 days leading up to a new President’s inauguration. The memorandum argues that such agreements, particularly those negotiated “quickly to include extreme policies,” are designed to circumvent the will of the people and undermine the President’s ability to manage the executive branch. It directs agency heads to disapprove any CBAs that violate these restrictions and were not yet approved prior to the new administration’s start. The Director of the Office of Personnel Management is directed to publish the memorandum in the Federal Register.
The memorandum arises from a concern that outgoing administrations may try to bind their successors through last-minute policy decisions. This is especially true with federal labor agreements, which can often be multi-year contracts. The specific example cited, a Department of Education CBA prohibiting the return of remote employees, illustrates the type of policy the current administration seeks to prevent. The memorandum references Section 7301 of Title 5, United States Code, as legal authority. It also alludes to a Supreme Court precedent stating that a President cannot diminish the powers of their successors. This action reflects a tension between ensuring stability in labor relations and allowing each administration to implement its own policy agenda.
The Presidential Memorandum contains several key directives:
- 30-Day Restriction: Executive departments and agencies are prohibited from making new CBAs, making substantive changes to existing agreements, or extending the duration of existing agreements in the 30 days prior to a change in Presidential administrations.
- Agency Head Disapproval: If a subordinate agency employee has executed a CBA that violates these restrictions but the agency head has not yet approved it, the agency head must disapprove the agreement.
- Exemption for Law Enforcement Officers: The restrictions do not apply to CBAs that primarily cover law enforcement officers.
- Severability Clause: If a court determines that the exemption for law enforcement officers (Sec. 2(d)) would prevent the memorandum from being considered a Government-wide rule or regulation, that section will be severed and rendered inoperative.
- Implementation: The Director of the Office of Personnel Management (OPM) is directed to publish the memorandum in the Federal Register.
Potential Impact
- Federal Employees and Unions: The immediate impact will be felt by federal employees and their unions, who will be restricted in their ability to negotiate new or modified CBAs in the final weeks of an administration. This could affect job security, working conditions, and other terms of employment.
- Agency Operations: The restrictions could provide incoming administrations with greater flexibility to implement their policy agendas and manage agency operations. However, it could also lead to instability in labor relations and potential disruptions to government services.
- Remote Work Policies: This specific example of the CBA at the Department of Education shows this could result in significant alterations to remote work across the Federal government.
- Political Tensions: This action, as many government labor actions are, would be expected to deepen partisan tensions.
Legal/Constitutional Considerations
The President’s authority to direct executive agencies through memoranda is generally well-established. However, legal challenges could arise if the implementation of this memorandum is seen as infringing on the rights of federal employees to collectively bargain, as protected by the Federal Service Labor-Management Relations Statute (FSLMRS). The exemption for law enforcement officers could be challenged as discriminatory. The severability clause is intended to protect the rest of the memorandum if a specific provision is struck down in court.
Political Implications
- Republican Support: Republicans will likely support the memorandum as a way to prevent outgoing administrations from tying the hands of their successors.
- Democratic Opposition: Democrats will likely criticize the memorandum as an attack on the rights of federal employees and an attempt to undermine collective bargaining.
- Federal Employee Unions: Federal employee unions will strongly oppose the memorandum and may challenge it in court.
- Presidential Approval: The memorandum could appeal to voters who believe that federal employees are overpaid and that unions have too much power. However, it could alienate voters who support collective bargaining rights.
Comparison to Previous Actions
Executive actions related to federal labor relations are common. Previous administrations have issued orders and memoranda affecting collective bargaining, often reflecting differing views on the appropriate role of unions in the federal government. While the specific 30-day window is unique, the general principle of limiting actions that bind future administrations has precedent.
White House Rationale
The White House rationale, as articulated in the memorandum, is that last-minute CBAs are designed to “harm” the incoming administration and “circumvent the will of the people.” The memorandum argues that such agreements inhibit the President’s ability to manage the executive branch effectively. While this rationale may resonate with some, critics may argue that it overstates the impact of CBAs and unfairly characterizes the motives of outgoing administrations.
Alternative Perspectives
Critics argue that the memorandum undermines the collective bargaining rights of federal employees and could lead to instability in labor relations. They contend that CBAs are essential for ensuring fair wages, safe working conditions, and efficient government services. Some argue that the memorandum is a politically motivated attempt to weaken federal employee unions.
The Presidential Memorandum on lame-duck collective bargaining agreements represents a significant intervention in federal labor relations. It reflects a concern about outgoing administrations binding their successors but raises concerns about potential negative consequences for federal employees and unions. The most important questions that remain unanswered include: How will the restrictions be interpreted and applied in practice? What will be the long-term impact on labor relations in the federal government? And will the memorandum be challenged in court?