Executive Orders 13836, 13837, and 13839

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Title 3--
The President

Memorandum of October 11, 2019

Executive Orders 13836, 13837, and 13839

Memorandum for the Heads of Executive Departments and
Agencies

On May 25, 2018, I signed three Executive Orders
requiring executive departments and agencies (agencies)
to negotiate collective bargaining agreements that will
reduce costs and promote government performance and
accountability. These Executive Orders, Executive Order
13836 of May 25, 2018 (Developing Efficient, Effective,
and Cost-Reducing Approaches to Federal Sector
Collective Bargaining), Executive Order 13837 of May
25, 2018 (Ensuring Transparency, Accountability, and
Efficiency in Taxpayer-Funded Union Time Use), and
Executive Order 13839 of May 25, 2018 (Promoting
Accountability and Streamlining Removal Procedures
Consistent with Merit System Principles), were
partially enjoined by the United States District Court
for the District of Columbia on August 25, 2018. The
District Court's injunction barred enforcement of
sections 5(a), 5(e), and 6 of Executive Order 13836,
sections 3(a), 4(a), and 4(b) of Executive Order 13837,
and sections 3, 4(a), and 4(c) of Executive Order
13839.

On July 16, 2019, the United States Court of Appeals
for the District of Columbia Circuit held that the
District Court lacked jurisdiction and vacated its
judgment, and the Court of Appeals has now issued the
mandate making its judgment effective.

Provisions of the Executive Orders that had been
subject to the District Court's injunction set
presumptively reasonable goals that agencies must
pursue during bargaining; directed agencies to refuse
to bargain over permissive subjects of negotiation; and
established Government-wide rules that displace
agencies' duty to bargain with unions over contrary
matters, regardless of whether the Federal Service
Labor-Management Relations Statute would otherwise
require bargaining absent those rules. Sections
4(c)(ii) and 8(a) of Executive Order 13837 and section
8(b) of Executive Order 13839, however, recognized
agencies' ability to comply with collective bargaining
agreements containing prohibited terms so long as such
agreements were effective on the date of the Executive
Orders.

While the District Court's injunction remained in
effect, agencies retained the ability to bargain over
subjects covered by the enjoined provisions. The
Executive Orders, however, did not address collective
bargaining agreements entered into during this period.
As a result, it is necessary to clarify agencies'
obligations with respect to such collective bargaining
agreements.

Agencies shall adhere to the terms of collective
bargaining agreements executed while the injunction was
in effect. Agencies that remain engaged in collective-
bargaining negotiations, to the extent consistent with
law, shall comply with the terms of the Executive
Orders. However, where, between the date of the
Executive Orders and the date of the Court of Appeals's
mandate, the parties to collective bargaining
negotiations have executed an agreement to incorporate
into a new collective bargaining agreement specific
terms prohibited by the Executive Orders, an agency may
execute the new collective bargaining agreement
containing such terms, and terms ancillary to those
specific terms, notwithstanding the Executive Orders.

To the extent it is necessary, this memorandum should
be construed to amend Executive Orders 13836, 13837,
and 13839.

The Director of the Office of Personnel Management is
hereby authorized and directed to publish this
memorandum in the Federal Register.

THE WHITE HOUSE,

Washington, October 11, 2019