The FLRA has issued a trio of policy statements—all split 2-1 along party lines—as requested by the Trump administration that expand management rights over unions in the federal workplace.
One statement involved whether so-called “zipper” clauses, which management typically proposes, to ban or limit mid-term bargaining during the period of a contract. OPM had asked the FLRA to require bargaining over such proposals up to an impasse where the Federal Service Impasses Panel can be invoked.
It said that would parallel the requirement to bargain over “reopener” clauses, which unions typically propose, to specify the conditions where a party may seek to negotiate over a term covered by a contract. The authority agreed, saying that the law “neither requires nor prohibits midterm bargaining, and that all proposals concerning midterm-bargaining obligations (including zipper clauses) are mandatory subjects for negotiation that may be bargained to impasse.”
Another statement arose from an Agriculture Department request involving contracts that automatically extend if there has been no resolution on a new contract by the ending date. The department argued that once the original term ends, an agency head should be free to review the contract and require changes to put its terms in compliance with changes in laws or policies—such as those in the set of 2018 executive orders limiting the scope of bargaining—since the starting date.
The FLRA agreed, saying that while the law bars implementing new government-wide regulations that conflict with a preexisting collective-bargaining agreement, that restriction lasts only for the agreement’s “express term.” Once original expiration date is reached, “all existing, applicable government-wide regulations govern the parties’ conduct immediately,” it said.
The third involved a request by the Education Department that FLRA set a higher standard for when management is obligated to bargain over changes it makes to certain working conditions for employees. For decades, the FLRA had required bargaining only when a change was more than minimal, a standard the department said has been interpreted differently by arbitrators, courts and the FLRA itself.
The authority again agreed, saying that the standard it had used earlier—that the change must have a “substantial impact” on a condition of employment—is more “consistent with relevant judicial teachings and plain language” of the law.
Dissenting member Ernest DuBester said in each that the majority’s reasoning was flawed and that there was no reason to change long-standing practices, adding in one that “I can only conclude that the majority’s decision is driven solely by its disdain for the role of collective bargaining under our statute and its relentless effort to marginalize the role of unions in the federal sector.”
Federal unions denounced the policy statements in similar terms and have said they will appeal into federal court.