Federal appeals court overturns FLRA decision that limited mid-term bargaining for unions

A federal appeals court is striking down a Federal Labor Relations Authority decision that gave agencies more authority at the negotiating table with unions.

The U.S. Court of Appeals for the D.C. Circuit on Friday overturned the FLRA’s decision in September 2020, which for the first time made provisions limiting mid-term bargaining during the term of an agreement, known as “zipper clauses,” mandatory bargaining subjects.

The appeals court’s three-judge panel determined that the FLRA “failed...

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A federal appeals court is striking down a Federal Labor Relations Authority decision that gave agencies more authority at the negotiating table with unions.

The U.S. Court of Appeals for the D.C. Circuit on Friday overturned the FLRA’s decision in September 2020, which for the first time made provisions limiting mid-term bargaining during the term of an agreement, known as “zipper clauses,” mandatory bargaining subjects.

The appeals court’s three-judge panel determined that the FLRA “failed to offer a reasoned explanation for its decision that the statute does not require midterm bargaining.”

When new issues come up over the term of a collective bargaining agreement, but aren’t already covered by the agreement, the court said federal employees may seek to bargain with their agency over how such issues should be handled.

The court, meanwhile, said agencies during negotiations may try to include a “zipper clause” into contract negotiations that would limit or prevent midterm bargaining.

However, the court determined that “zipper clause” proposals aren’t a mandatory provision that agencies can bring to the Federal Service Impasses Panel (FSIP) to resolve.

Prior to the FLRA’s ruling, zipper clauses were considered “permissive” proposals that agencies and unions could choose to negotiate over, but couldn’t bring before FSIP.

“It is not disputed that parties may negotiate over and agree to a zipper clause. But what happens if an agency proposes a zipper clause, and the union disagrees on whether or to what extent to include it in the collective bargaining agreement? The answer largely depends on whether zipper clauses are a “mandatory” or “permissive” subject of bargaining,” the court’s opinion states.

The National Treasury Employees Union, which led oral arguments last October on behalf of a coalition of unions, said that federal labor statute for decades has allowed unions to bargain over issues that arise during the term of a collective bargaining agreement, if the contract does not already address that issue.

“The FLRA erased this longstanding right, but now the D.C. Circuit’s reversal of the FLRA’s ruling means that this crucial collective bargaining right once again exists,” NTEU President Tony Reardon said.

NTEU said this ruling, if it remained in effect, would allow agencies to finalize a labor contract containing a zipper clause “over a union’s objections,” if brought before the FSIP.

Reardon said the D.C. Circuit’s ruling protects unions from unwillingly losing their midterm bargaining rights through term negotiations.

“NTEU hopes that the FLRA will heed the D.C. Circuit’s admonition, which it has now delivered repeatedly, that it must issue reasoned decisions,” Reardon said.

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