FMCS Services Curtailed Pursuant to Executive Order

The Federal Mediation and Conciliation Service (FMCS) has begun to significantly curtail services as the agency moves to implement a March 14 Executive Order, Continuing the Reduction of the Federal Bureaucracy, that directs FMCS and other agencies to “reduce the performance of statutory functions and associated personnel to a minimum presence and function required by law.”

In response to this Executive Order, FMCS anticipated implementing the agency’s contingency plan, issued in December 2020 in preparation for the potential of a budget-based disruption of agency operations.

As a result, and as noted in a statement FMCS released on March 19th, the agency announced it would examine how to apply the Executive Order in practice moving forward, specifically by ensuring “a coordinated approach to efficiency, optimization, and mission focus.” Among the immediate effects is that, on March 26, most, if not all of FMCS mediators were placed on administrative leave pending layoff, according to multiple news sources.

While mediation services provided by the agency appear to be curtailed, the agency continues to operate and employers should continue to comply with all statutorily mandated FMCS filing obligations, including complying with Sections 8(d) and 8(g) notice obligations under the National Labor Relations Act. In particular, employers and unions must still adhere to applicable requirements for timely written notice of intent to modify/terminate a collectively bargained agreement, as well as providing not less than ten days written notice to the employer in the event of striking or picketing a health care institution.

Clients may also explore private mediation services to assist in resolving workplace disputes. While few (if any) formal announcements have been made, we are aware of a number of FMCS mediators making plans to establish private mediation practices that may prove a viable alternative to efficient resolution of negotiations. In the meantime, Epstein Becker Green will continue to monitor next steps concerning FMCS’s implementation of this Executive Order to keep you up to date.