Federal appeals court strikes down FLRA decision setting higher bar for union negotiations

A federal appeals court, for the second time in two weeks, is striking down a Federal Labor Relations Authority decision that set a higher bar for when agencies needed to negotiate with their unions.

The U.S. Court of Appeals for the D.C. Circuit on Tuesday overturned an FLRA decision in September 2020 that set a new standard for the kinds of management-led policy changes that required negotiations with federal employees unions.

The FLRA decided in 2020 that agencies should bargain with unions over changes that have a “substantial impact” on conditions of employment.

That decision set a higher threshold for the need for collective bargaining, compared to the standard the agency had used for the past 35 years. FLRA previously held that agencies should bargain with their unions on policy changes that have “more than a de minimis impact” on employees.

A three-judge panel determined the FLRA’s decision to set a new collective bargaining threshold “was not sufficiently reasoned in several critical respects.”

The court determined FLRA’s substantial-impact standard “falls short of explaining the purported flaw of the de minimis standard,” and that the agency failed to justify how its newer threshold was better than the one being replaced.

“The FLRA’s condemnation of the de minimis test also fails to grapple with the agency’s own past policy choices and this court’s decisions upholding them,” the court wrote in its opinion.

National Treasury Employees Union President Tony Reardon said the FLRA “had attempted to weaken collective bargaining” by only requiring bargaining over substantial changes to conditions in employment.

“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.

This marks the court’s second recent ruling that strikes down an FLRA decision.

Judges last week struck down a decision that, for the first time, made provisions limiting mid-term bargaining during the length of a collective bargaining agreement, also known as “zipper clauses,” mandatory bargaining subjects that agencies could bring to the Federal Service Impasses Panel (FSIP) to resolve.

Everett Kelley, president of the American Federation of Government Employees, called both recent court decisions “a victory for all federal workers.”

“AFGE salutes the court for recognizing that the FLRA impermissibly departed from the statute governing federal-sector labor relations and years of well-founded precedent with little explanation and less reasoning,” Kelley said.

FLRA argued that the de minimus standard suggested triviality, and that it was inappropriate to compel agencies to bargain over topics that are “barely more than trivial.”

The appeals court, however, determined that setting a new, higher standard for collective bargaining wouldn’t help agencies and unions resolve any disagreements about management decisions.

“There is no obvious reason to expect that labor unions and employers will disagree less frequently about whether any given management decision has a ‘substantial impact’ on conditions of employment than they previously did over whether such a decision had a more than de minimis effect,” the court wrote.

FLRA’s decision in 2020 came at the request of the Education and Agriculture departments, which asked the agency to weigh in on the standard they should use to determine whether they need to bargain over management-directed policy changes.

Both USDA and the Education Department argued the “more than de minimus” standard was too vague and has subsequently had a negative impact on federal labor relations.

The FLRA reached a 2-1 decision to set the new, substantial-impact standard. The agency’s lone dissenting member and only Democratic member, Ernest DuBester, argued that the agency’s adoption of a new bargaining threshold departed from past precedent without justification.

The appeals court, on this point, agreed with DuBester.

FLRA held a substantial impact standard prior to 1985, but moved to the “de minimis standard” to implement the 1978 Labor-Management Relations Statute, meant to encourage collective bargaining between federal employees and their employers

“But the mere fact that the FLRA briefly used a substantial impact standard soon after the agency’s creation does not provide inherent support for the present decision to discard thirty-five years of intervening precedent and return to that past policy,” the court wrote.

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