Executive Order 14003, Protecting the Federal Workforce, and Bargaining over Matters 

under 7106(b)(1) of the Federal Service Labor-Management Relations Statute

Frequently Asked Questions (FAQ) 

Training Presented October 28, 2021 - https://youtu.be/Qu1RaRcM7Bg

Does the Authority have any guidance or training on differentiating between 7106(a) and 7106(b)? ................. 1

Does "numbers, types, and grades" only apply to bargaining-unit employees and positions? ............................ 2

Is a proposal to bargain over 7106(b)(1) issues a 7106(b)(1) issue itself? What about a proposal to establish predecisional involvement (PDI)?............................................................................................................... 2

It was noted, some proposals could be both (b)(1) and (b)(2) or (3) proposals. Is this a distinction we should pay 

attention to? If yes, why?.................................................................................................................... 2

Will the Authority issue a Policy Statement on Executive Order 14003?.......................................................... 2

What is the FLRA's role if agencies declare a proposal non-negotiable under 7106(b)(1)?................................. 2

There is some dispute within our agency as to whether it would be an unfair labor practice for the Union to push 

the agency to Impasse on (b)(1) matters. Can you elaborate?.................................................................. 3

Is (b)(1) bargaining to occur pre-change implementation, or post implementation? Or both . . . depending on 

what, exactly?.................................................................................................................................... 3

What is necessary to be most successful bargaining (b)(1) matters?.............................................................. 3

Can we successfully bargain over (b)(1) matters using distributive (position-based) bargaining methods? .......... 4

How, if at all, can you use an integrative bargaining model when the parties' interests are inherently in conflict, 

or when the other party is using a distributive model?.............................................................................. 5

What are some typical subjects addressed in process agreements?............................................................... 5

We don’t trust them when we bargain other things. Why should we trust them when bargaining (b)(1) subjects?6

How do we go about enforcing the requirement to bargain over permissive subjects under the EO? Can that be 

done with a charge, or is there some alternative process to enforce the election to bargain, if an agency is 

refusing to bargain?............................................................................................................................ 7

The presenter indicated that bargaining over 7106(b)(1) matters shall be substantive. Does that mean that 

bargaining over permissive topics will no longer be limited to impact and implementation? .......................... 8

Can unions require agencies to bargain over permissive subjects? That is, does the EO give unions a right to force 

bargaining over such topics? ................................................................................................................ 8

Does the Authority have any guidance or training on differentiating between 7106(a) and 7106(b)?

The FLRA’s website, FLRA.gov, contains several guides and training materials. The guides can be found here; 

the Guide to Negotiability, in particular, contains a detailed discussion of management rights and 7106 of the 

Statute. Additionally, many of the FLRA’s course materials from previous trainings, several of which concern 

7106 issues, can be found here. Further, many helpful training programs – including the October 28, 2021 E.O. 

14003 and Section 7106(b)(1) training – can be found at the FLRA’s YouTube channel here.
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Does "numbers, types, and grades" only apply to bargaining-unit employees and positions?

Before a matter under 7106(b) of the Statute requires an agency to bargain, the matter must first involve 

bargaining-unit employees’ conditions of employment. The Statute requires bargaining only over bargainingunit employees’ conditions of employment, not conditions of employment of individuals outside the 

bargaining unit. But, even some matters concerning unit employees’ conditions of employment are outside 

the duty to bargain under the Statute. As relevant here, ifthe matter involves a management right under 

7106(a) of the Statute, then the matter/proposals are outside the duty to bargain, unless the matter falls 

within 7106(b). With specific regard to “numbers, types, and grades” – a matter falling within 7106(b)(1) – the 

Statute provides that the agency may elect to bargain over those matters, although Executive Branch policy 

under Executive Order 14003 directs the head of each agency to elect to bargain over these subjects and for 

agency heads to instruct subordinate officials to do the same. Note, however, that even a proposal that 

directly determines the conditions of employment of individuals other than bargaining-unit employees may be 

within the duty to bargain if the proposal “vitally affects” bargaining-unit employees.

Is a proposal to bargain over 7106(b)(1) issues a 7106(b)(1) issue itself? What about a proposal to establish 

pre-decisional involvement (PDI)?

The Statute makes a proposal to bargain over 7106(b)(1) issues a 7106(b)(1) matter. While the Authority has 

found proposals providing for joint labor-management committees whose purpose is to make 

recommendations concerning conditions of employment to be negotiable, the Authority has not yet 

addressed whether a proposal to establish PDI falls within 7106(b)(1). 

It was noted, some proposals could be both (b)(1) and (b)(2) or (3) proposals. Is this a distinction we should 

pay attention to? If yes, why?

Putting aside any possible impact of the Executive Order on the Statute, the Statute itself makes 7106(b)(1) 

topics permissive subjects of bargaining. By contrast, 7106(b)(2) and 7106(b)(3) topics are mandatory subjects 

of bargaining. Therefore, if a bargaining proposal is a procedure or an appropriate arrangement under (b)(2) 

or (b)(3), the agency must bargain over it, regardless of whether the proposal also falls within 7106(b)(1). 

Will the Authority issue a Policy Statement on Executive Order 14003?

Under 5 C.F.R. part 2427, the Authority may issue “General Statements of Policy or Guidance,” or “Policy 

Statements,” upon request from certain designated individuals or entities. See 5 C.F.R. § 2427.2. In deciding 

whether to issue a Policy Statement, the Authority considersseveral factors, including whether the question 

can more appropriately be resolved by other means. See id. § 2427.5. Currently, there is no request for a 

Policy Statement regarding the Executive Order pending before the Authority. If one is filed, then the 

Authority will consider it based on the standards set out in § 2427.5.

What is the FLRA's role if agencies declare a proposal non-negotiable under 7106(b)(1)? 

Parties are always free to file an unfair labor practice charge alleging a failure to bargain. Failing to bargain 

over a proposal previously found to be negotiable, or substantially identical to a proposal the Authority 

previously determined to be negotiable, is an unfair labor practice. Dep’t of the Air Force, U.S. Air Force Acad., 

6 FLRA 548 (1981), affirmed sub nom. Dep’t of the Air Force, U.S. Air Force Acad. v. FLRA, 717 F.2d 1314 (10th

Cir. 1983).
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The Union also can file a negotiability appeal with the Authority, although the Authority will dismiss the 

negotiability appeal if there is a pending, “directly related” unfair-labor-practice charge or grievance alleging 

an unfair labor practice. See 5 C.F.R. § 2424.30(a). That dismissal will be without prejudice to the union’s right 

to refile the negotiability appeal, once the directly related charge or grievance is administratively resolved, at 

which point the Authority will determine whether it is still necessary to resolve the petition. See id. Assuming 

that the negotiability petition is properly before the Authority, under current standards, if the Authority finds 

that the proposal concerns a 7106(b)(1) matter, it will issue an order stating that the proposal is bargainable at 

the agency’s election. See id. § 2424.40(b).

There is some dispute within our agency as to whether it would be an unfair labor practice for the Union to 

push the agency to Impasse on (b)(1) matters. Can you elaborate?

In Sport Air Traffic Controllers Organization (SATCO), 52 FLRA 339 (1996), the Authority held insistence to 

impasse on using a recording device during contract negotiations (a permissive matter)supported a finding of

bad faith bargaining. It is unclear if that holding will apply to bargaining over substantive proposals unrelated 

to ground rules. However, OPM issued guidance to agencies on March 5, 2021 stating that “A failure by 

agency managers to engage in bargaining over the subjects covered by 5 U.S.C. 7106(b)(1) would be 

inconsistent with the President’s Directive.” Any questions on the President’s directive should be directed to 

OPM at awr@opm.gov. 

Is (b)(1) bargaining to occur pre-change implementation, or post implementation? Or both . . . depending 

on what, exactly?

Good faith bargaining requires bargaining to agreement or impasse prior to implementation unless exigent 

circumstances require implementation before bargaining is completed. 

What is necessary to be most successful bargaining (b)(1) matters?

The most successful (b)(1) negotiators:

• Focus on achieving important outcomes about things that matter.

• Engage with key stakeholders early and often. 

• Seek agreement from key stakeholders and both bargaining teams on the meaning of success when 

bargaining (b)(1) matters.

• Focus on what both parties care about most (i.e., key interests) rather than just swap written proposals 

(i.e., positions).

• Consistently demonstrate mutual respect for each other, for others’ legitimate interests, for others’ 

ideas, and for the collective-bargaining process.

• Understand the differences between distributive and integrative bargaining models; then jointly adopt 

the most appropriate bargaining model. (Bargaining models defined below in, Can we successfully 

bargain over (b)(1) matters using distributive bargaining methods?)

• Solve pragmatic problems rather than just resolve collective-bargaining disputes.

• Continuously improve their own bargaining-related skills, including active listening, and continuously 

improve their collective-bargaining process.
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• Adopt a process agreement that encourages positive bargaining behaviors rather than just adopt 

ground rules that discourage negative bargaining behaviors.

• Brief all negotiators on current collective-bargaining policy and law.

Can we successfully bargain over (b)(1) matters using distributive (position-based) bargaining methods?

Yes, you can successfully bargain (b)(1) matters using distributive bargaining methods; but you run the risk of 

being less successful than if you use integrative bargaining methods. 

Distributive bargaining—often called traditional bargaining or position-based bargaining—is a strategy used to 

distribute what negotiators perceive to be fixed resources. Negotiators generally act based on the assumption 

that they can only take a larger slice of a limited pie by making other negotiators take a smaller slice. 

Distributive negotiators adopt competing positions—their preferred outcome—and exchange proposals 

containing their preferred way to achieve those positions.

In contrast, integrative bargaining—often called interest-based bargaining or principled negotiation—is a 

strategy used to extract maximum value from the bargaining process for all stakeholders. Negotiators 

generally act based on the assumption that the most successful outcomes result from a bargaining process 

that better satisfies key interests. Interests are the reasons that stakeholders care about the outcome of 

bargaining. Rather than engage over competing positions and proposals, integrative negotiators 

collaboratively generate options intended to satisfy as many joint and separate interests as possible. 

Following are some tips for negotiators who engage in distributive bargaining over (b)(1) matters.

Identify the issue. Before drafting a proposal, first identify the issue or the problem you are trying to solve. 

Try writing down the issue in the form of a question that will be answered by the language of your negotiated 

agreement. Be specific and try to define the issue narrowly. See if both parties can agree on the question 

before you draft a proposal that contains your preferred answer. 

For example, what if an agency wants to start performing a new function or substantially change how 

employees perform an existing function? One important question might be, “How many employees should be 

assigned to perform the job function?” Before bargaining with the union, the agency might have planned on 

this being a one-person function. However, the union’s opening (b)(1) proposal might be, “Four employees 

will perform this job.” 

Ask why. How can the parties bridge the gap between their proposals? One important thing they can do is 

ask “why?” In this hypothetical, the union can ask why the agency wants only one person to perform the job 

function. The agency can ask why the union wants four employees to perform the job. They might discover 

that the agency is most concerned about effectiveness and efficiency performing the job function, while the 

union is most concerned about the employees’ health and safety.

Share information. Discovering what the other party cares about can be critical to successful (b)(1) bargaining, 

but so is sharing relevant information. In this hypothetical, the union might share information that helps the 

agency understand how assigning only one employee to the job function could jeopardize that person’s safety. 

The agency might share information showing that assigning four employees to the job function could be very 

costly without a meaningful improvement to safety. The more information the parties share, the more likely 
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they will discover common ground. Transparency also builds confidence in the legitimacy of both parties’ 

goals and proposals, which improves the parties’ collective-bargaining relationship. 

Facilitator. Ask a facilitator to be available if needed. A skilled facilitator can improve your bargaining process 

or at least help you overcome barriers to success. In this hypothetical case, a facilitator helped the parties 

share enough information for both to see that, without new safety protocols, three employees assigned to the 

job function might not be unreasonable. So the agency offered to implement new safety protocols and the 

parties agreed to the assignment of only two employees to the job function.

How, if at all, can you use an integrative bargaining model when the parties' interests are inherently in 

conflict, or when the other party is using a distributive model?

“Interests” are the key reasons that we care so much about what we are bargaining. They answer the 

question, “Why is this so important?” When we use an integrative model to bargain (b)(1) matters, we usually 

define success as achieving solutions that satisfy as many joint and separate interests as possible. 

Interests are rarely in conflict. Generally, interests are either separate or they are common to both parties. 

When it feels like they are in conflict, most often the parties have reverted to a distributive form of bargaining. 

That results in conflict between the parties’ positions—i.e., their proposals—rather than their interests. A 

trained facilitator usually can help negotiators recognize how they went off the rails and help them realign 

their bargaining process.

What are some typical subjects addressed in process agreements?

Ground-rules agreements generally contain requirements and restrictions to discourage negative bargaining 

behaviors. In contrast, process agreements are designed to encourage positive bargaining behaviors. 

Integrative-bargaining training might help you identify essential elements for your (b)(1) process 

agreement. Consider the following examples.

a. Principles

Parties often begin with principles that will guide their (b)(1) bargaining, such as,

1. We will attack problems, not each other;

2. We will keep asking “why” (respectfully, of course);

3. We will strive to develop creative options that satisfy as many interests as possible;

4. We will use power constructively with each other, not destructively against each other; and

5. Unless we are ready to say “yes,” we will explore ways to say “yes, but ...” rather than “no.”

b. Success

In addition to principles, process agreements can contain commitments to:

1. Reconsider the meaning of success; and to help each other be successful. 

2. Treat differences as a strengths and value diversity in all of its forms.

3. Share appropriate information.

4. Educate stakeholders, and rather than solicit their positions, listen to why they care about the 

topic you are bargaining (i.e., their interests). 

5. Acknowledge that success requires both partiesto be prepared, and an agreement to enter 

each bargaining session fully prepared. 
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c. Facilitator

Many process agreements contain parties’ agreements to use a skilled, external facilitator when 

appropriate to help manage process so negotiators can focus on substance. 

d. Decision-making model

Many process agreements adopt consensus as the parties’ decision-making model. Achieving 

consensus requires parties’ willingness to consider and adopt solutions they support even when they 

might prefer something else. Training normally is required to apply this model to complex, sensitive, 

and difficult matters. Facilitation and even mediation—which is assisted negotiation—might also be 

required to reach consensus on the most difficult matters.

e. Also ... 

Many process agreements contain sections on: 

1. Negotiation training; 

2. The need for consistency, predictability, and transparency; and 

3. The need for commitment, vision, and courage. Commitment to work together for mutual 

success. Joint vision of what you intend to accomplish through bargaining. Courage to 

persistently do the right thing despite naysayers, keep fear of failure at bay, and avoid 

becoming discouraged when times are tough.

We don’t trust them when we bargain other things. Why should we trust them when bargaining (b)(1) 

subjects?

The response to this question contains two parts. 

First, if you do not trust each other, you still can successfully bargain (b)(1) subjects by creating a bargaining 

process you trust. You can do this by jointly adopting a combination of expert facilitation, a good process 

agreement, and good ground rules to guide you. Expect that (b)(1) bargaining will be more difficult as a result 

of lingering mistrust. Most likely, bargaining will require more resources, it will take longer, it will feel like 

additional concessions are being demanded, and the other party might ask for verification that you think is 

excessive and feels insulting. Those are common consequences of damaged trust. This does not make 

successful bargaining impossible, just more difficult.

The second part of this response is a bit longer. 

Labor-management relationships exist between organizations. They are institutional. Trust is not 

institutional. Trust is interpersonal. So, when we talk about trust and mistrust, think about it as something 

between people, not between institutions.

We tend to trust people whom we perceive as honest, respectful, humble, appreciative, transparent, caring, 

reliable, and more like us than they are different from us.

Trust is not something we create. Trust is something we grow slowly over time. Trust is far easier and quicker 

to damage than it is to grow. Once we damage trust, it becomes far more difficult to repair.

There is no magic formula for repairing trust in a labor-management relationship. It also is not a unilateral 

exercise. Repair requires effort by everyone involved. 
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To repair trust in each other, first acknowledge that trust must be repaired. Ask yourself, what is it about 

“them” that causes you to not trust them? Instead of accusing them of being untrustworthy, try talking with 

them about the specific behavior or characteristic in a nonthreatening and neutral way. Try expressing it as 

your perception rather than declare it to be an absolute fact. Listen carefully, tell them what you heard them 

say, listen again, and work together to identify ways for them to earn your trust. Use an expert facilitator if 

doing so might help.

It would be a mistake for someone to enter an existing labor-management relationship and think they can 

inherit the trust others had for their predecessor. Unfortunately, someone can enter an existing labormanagement relationship and inherit the mistrust others had for their predecessor. That’s not something 

about unions or management. That’s something about people in general. 

If you share responsibility for damaging trust in the labor-management relationship, or if you inherited a 

relationship dominated by mistrust, consider taking the initiative to begin repairing the damage. Recognize 

that, because trust is personal, repair efforts should not be delegated. 

Repair takes time, so today might be a good time to begin.

How is this EO enforceable, given the clear language in the Statute, and Congress’ intent, that the legal 

discretion to bargain on permissive subjects was granted to the agencies?

OPM issued guidance to agencies on March 5, 2021 stating that “A failure by agency managers to engage in 

bargaining over the subjects covered by 5 U.S.C. 7106(b)(1) would be inconsistent with the President’s 

Directive. Therefore, in order to carry out the policy decision of the President reflected in the EO, agencies 

must commence bargaining in good faith over all of these subjects.” 

OPM’s guidance is located here: https://www.chcoc.gov/content/guidance-implementation-executive-order14003-protecting-federal-workforce. Any questions on the President’s directive should be directed to OPM at 

awr@opm.gov. 

How do we go about enforcing the requirement to bargain over permissive subjects under the EO? Can that 

be done with a charge, or is there some alternative process to enforce the election to bargain, if an agency 

is refusing to bargain?

OPM issued guidance to agencies on March 5, 2021 stating that “A failure by agency managers to engage in 

bargaining over the subjects covered by 5 U.S.C. 7106(b)(1) would be inconsistent with the President’s 

Directive. Therefore, in order to carry out the policy decision of the President reflected in the EO, agencies 

must commence bargaining in good faith over all of these subjects.” 

OPM’s guidance is located here: https://www.chcoc.gov/content/guidance-implementation-executive-order14003-protecting-federal-workforce. Any questions on the President’s directive should be directed to OPM at 

awr@opm.gov. 
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The presenter indicated that bargaining over 7106(b)(1) matters shall be substantive. Does that mean that 

bargaining over permissive topics will no longer be limited to impact and implementation?

OPM issued guidance to agencies on March 5, 2021 stating that “A failure by agency managers to engage in 

bargaining over the subjects covered by 5 U.S.C. 7106(b)(1) would be inconsistent with the President’s 

Directive. Therefore, in order to carry out the policy decision of the President reflected in the EO, agencies 

must commence bargaining in good faith over all of these subjects.” In addition, OPM’s guidance further 

states “In order to implement the policies of the Executive Order, agencies shall agree to bargain over the 

substance of § 7106(b)(1) subjects, whether at the union’s request (e.g. midterm bargaining request) or as the 

result of a proposed agency action (e.g. union responding to an agency notice of a pending change subject to 

collective bargaining).”

OPM’s guidance is located here: https://www.chcoc.gov/content/guidance-implementation-executive-order14003-protecting-federal-workforce. Any questions on the President’s directive should be directed to OPM at 

awr@opm.gov. 

Can unions require agencies to bargain over permissive subjects? That is, does the EO give unions a right to 

force bargaining over such topics?

OPM issued guidance to agencies on March 5, 2021 stating that “A failure by agency managers to engage in 

bargaining over the subjects covered by 5 U.S.C. 7106(b)(1) would be inconsistent with the President’s 

Directive. Therefore, in order to carry out the policy decision of the President reflected in the EO, agencies 

must commence bargaining in good faith over all of these subjects.” 

OPM’s guidance is located here: https://www.chcoc.gov/content/guidance-implementation-executive-order14003-protecting-federal-workforce. Any questions on the President’s directive should be directed to OPM at 

awr@opm.gov.