Labor & Employment Law Daily Wrap Up, LABOR NEWS—OPM memo ‘provides collective bargaining guidance to agencies engaged in RIFs’, (Mar 17, 2025)

By Brandi O. Brown, J.D.

“Any CBA provisions that are inconsistent with OPM regulations or that excessively interfere with management’s rights to ‘determine the organization’ and the ‘number of employees’ of the agency, as well as ‘layoff, and retain employees in the agency’ are unenforceable,” the memo contends.

In a memo issued last week, entitled “Guidance on Collective Bargaining in Connection with RIFs,” which refers back to an OPM guidance that was issued in late February, the Acting Director of the Office of Personnel Management has given collective bargaining guidance to agencies engaged in reductions in force.

The memo contends that, “[u]nder the Federal Service Labor-Management Relation Statute” (sic) (FSLMRS), each agency “has the right to determine whether to conduct a RIF and exercise its discretion in determining which positions will be abolished or retained.” However, the memo notes that regulations applicable on a government-wide basis prescribe a process for agencies to follow when doing so and notes that the “scope of collective bargaining should be limited to procedures and appropriate arrangement that do not run afoul of these regulations.” It notes that federal sector CBAs also “often” contain RIF articles that could “obviate an agency’s obligation to further collective bargaining.”

Comprehensive review. In the memo, agencies are instructed to “conduct a comprehensive review of their CBAs” with regard to RIF coverage and that, “[t]o the extent that such matters are contained in or covered by an existing CBA between the parties, an agency may not be obligated to bargain on such matters again.”

Excessive interference. In the memo, OPM also states that “Any CBA provisions that are inconsistent with OPM regulations or that excessively interfere with management’s rights to ‘determine the organization’ and the ‘number of employees’ of the agency, as well as ‘layoff, and retain employees in the agency’ are unenforceable.”

It adds, however, that “[t] the extent any union proposals concern certain aspects of a RIF that are not covered by a government-wide regulation or a CBA and on which the agency has discretion on implementation, agencies may have a duty to bargain over these proposals.”

Info requests. As for information requests regarding RIFs, which labor unions are permitted to make under the FSLMRS, the memo instructs that “the union must articulate its need for all information requested” and that “[g]eneral efforts to ‘ensur[e] compliance with Merit System Principles,’ ‘monitor contract compliance,’ ‘address bargaining unit. .. concerns,’ represent employees in ‘further legal actions,’ and otherwise audit management are insufficient to meet particularized need requirements.”

Finally, the memo reminds agencies that they “should ensure that they do not disclose information that constitutes guidance, advice, and counsel from management officials relating to collective bargaining.”

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