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By: FEDweek StaffA federal appeals court has overturned an FLRA policy restricting bargaining during the term of a labor-management contract, one of a series of pro-management policies the agency adopted at the request of OPM during the Trump administration.
The FLRA said in a 2020 policy statement that while civil service law specifically requires bargaining for a contract when certain standards are met, it does not specify a requirement to bargain on an issue that arises during the term of a contract if the contract does not cover that issue — and that midterm bargaining thus is not required. Based on that conclusion, it further held that unions must bargain on management proposals to ban or limit mid-term bargaining — so-called “zipper” clauses — up to the point of a possible impasse which then would be taken to the Federal Service Impasses Panel for resolution.
Like the other decisions requested by the Trump administration, that policy was issued on a party-line 2-1 decision. Three unions appealed to the Court of Appeals for the District of Columbia Circuit, arguing that the FLRA misinterpreted the law and that the policy statements should be held invalid because they overturned longstanding precedent outside of a case where those issues were under dispute.
The court in case No. 20-1398 did agree with the FLRA that the law does not specify whether midterm bargaining is “mandatory” or “permissive.” But it said the FLRA “wrongly equated not expressly requiring midterm bargaining with prohibiting it” and that the law makes no distinction between term and midterm bargaining.
“The Authority’s errors include miscasting Supreme Court precedent, relying on conclusory assertions, and mischaracterizing its dramatic shift of the bargaining baseline as allowing “the parties to resolve” the issue,” the court said. “And, because the Authority avowedly rested its second holding on its first, we must vacate the zipper clause holding as well.”
It added that because of those holdings, it was not necessary to address unions’ arguments that the policy statements were invalid.
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