Michael Keefe
Wed, 02/02/2022
On January 28, 2022, the U.S. Court of Appeals for the D.C. Circuit vacated a controversial Federal Labor Relations Authority decision that would have potentially allowed agencies to make unfettered changes to working conditions during the term of a collective bargaining agreement as long as the changes were not expressly addressed in the agreement. The now-reversed decision would have unsettled long-established procedures of federal-sector labor relations.
For two decades the FLRA interpreted the Federal Service Labor-Management Relations Statute to require federal unions and agencies to bargain during the term of a collective-bargaining agreement about unforeseen matters not covered by the agreement. But in September 2020, a divided FLRA, with then-President Trump’s appointees in the majority, abruptly overruled its longstanding precedent. The majority also determined, for the first time, that a “zipper” clause—a contract provision that zip ups a contract, and prohibits or limits midterm bargaining—is a mandatory subject of bargaining, meaning that a party can bargain to impasse over a proposed clause, and potentially have that clause imposed on the other party against its will in proceedings before the Federal Service Impasses Panel. Because unions generally seek to maximize bargaining opportunities, they tend to be more likely than agencies to demand midterm bargaining, and more likely to resist zipper-clause proposals. The FLRA’s decision thus would have tipped the balance of bargaining power dramatically in favor of federal agencies.
The D.C. Circuit’s decision restored federal-sector unions’ statutory right to midterm bargaining, and removed zipper clauses from the scope of mandatory bargaining. On the issue of midterm bargaining, the D.C. Circuit rejected the FLRA’s position as arbitrary and capricious. The appellate court explained that the FLRA had interpreted the Statute in a manner “contrary” to a prior Supreme Court decision. The FLRA had incorrectly concluded that the Statute “clearly established” term bargaining, but was “indeterminate” as to midterm bargaining, and therefore, did not require it. The FLRA premised its incorrect interpretation on the Statute’s directive that the parties must “meet and negotiate in good faith for the purposes of arriving at a collective bargaining agreement,” which it read to apply only to term bargaining. But, as the D.C. Circuit noted, the Supreme Court had already held that this statutory language does not distinguish between the two types of bargaining, and that one could just as easily read it to apply to midterm bargaining as term bargaining. Because the FLRA failed to articulate a satisfactory explanation for its action, as required by administrative-law principles, the court set aside the ruling. Because the FLRA’s ruling on the mandatory negotiability of zipper clauses was “dependent on and flowing from” its midterm-bargaining ruling, the court set it aside too. The court thus vacated the FLRA’s decision in full.
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