Federal Manager's Daily Report

The FLRA is soliciting comments on whether so-called “zipper” clauses—which foreclose or limit mid-term bargaining during the term of a labor-management contract—are a mandatory subject of bargaining and therefore can be bargained up to an impasse where the Federal Service Impasses Panel can be invoked.

The notice, in the March 31 Federal Register, follows a request from OPM that the FLRA adopt a policy that bargaining is required on such clauses.

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It is the latest in a recent series of potential rule or policy changes from the FLRA that would strengthen management’s hand.

The FLRA noted that it has held that “reopener” clauses—which specify the conditions where a party may seek to negotiate over a term covered by a contract—are a mandatory subject of bargaining on grounds that they define the parties’ mid-term bargaining rights and obligations.

OPM has asked the FLRA to apply the same reasoning to zipper clauses.

“OPM contends that the Authority’s precedent regarding zipper and reopener clauses have created an inequality where only reopener clauses can be bargained to impasse. Therefore, parties seeking to include a zipper clause are disadvantaged during term bargaining and the Panel is precluded from considering the totality of the circumstances when deciding to limit or broaden mid-term bargaining. Therefore, OPM concludes that parties should be able to bargain zipper clauses to impasse,” the notice said.

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Federal Manager’s Handbook, 5th Ed.