Good News: With This FLRA, It’s Good to be an Agency, Part Deux

By Ann Boehm, November 30, 2020

A few weeks ago, I told you about the three FLRA decisions that are definitely on the pro-agency side of the bargaining spectrum: U.S. Department of Education and U.S. Department of Agriculture, 71 FLRA 968 (Sept. 30, 2020); U.S. Office of Personnel Management, 71 FLRA 977 (Sept. 30, 2020); and U.S. Department of Agriculture, Office of the General Counsel, 71 FLRA 986 (Sept. 30, 2020). I focused that article on the first case and promised to provide in-depth coverage of the other two in a subsequent article. So here goes:

U.S. Office of Personnel Management, 71 FLRA 977

This case makes zipper clauses a mandatory subject of bargaining.

Let’s start with what may seem like a basic question: What is a zipper clause? A zipper clause is a provision in a collective bargaining agreement (CBA) that forecloses the union’s right to bargain during the term of the agreement on matters not contained in the CBA.

Agencies and unions have always had the ability to negotiate over inclusion of zipper clauses in the CBA, but until this decision was issued, zipper clauses were not mandatory subjects of bargaining. With the FLRA now stating that they are mandatory subjects of bargaining, the parties may bargain zipper clauses to impasse.

In practice, this could take away union rights to initiate midterm bargaining. It also could simply result in more clever negotiating tactics by the unions and agencies. Member DuBester suggested as much with this line from his dissent: “In reality, unions wishing to preserve their ability to initiate midterm bargaining will now be required to trade something of value at the bargaining table in hopes of securing what was, until today, a statutory right.” Id. at 985.

You heard it here agencies (thanks to Member DuBester). Be clever in negotiating. Zipper clauses are very much on the table.

U.S. Department of Agriculture, Office of the General Counsel, 71 FLRA 986

This case allows for Agency head review of expiring, existing collective bargaining agreements when there is a request for renegotiation pending.

Two key statutory provisions apply in the FLRA’s analysis of this matter — 5 U.S.C.§7114(c)(1), which provides that CBAs are subject to agency head review, and 5 U.S.C.§ 7116(a)(7), which provides that it is an unfair labor practice for an agency to enforce a rule or regulation in conflict with an existing CBA if the CBA was in effect before the date the rule or regulation was prescribed.

Since 1993, the FLRA has held that for CBAs that automatically renew upon expiration, the Agency head may review the agreement the day after the expiration of the CBA window for requesting renegotiation. Kansas Army Nat’l Guard, 47 FLRA 937 (1993). This review ensures that the renewed agreement complies with any rules or regulations that changed during the previous CBA term.

What the Department of Agriculture asked the FLRA to decide in this case is whether there can be Agency head review of an existing CBA when a party requests to renegotiate an expiring CBA with a continuance provision. It’s a pretty discrete issue, eh?

Here’s what the FLRA decided. If a continuance provision extends the CBA past the original expiration date, “the first day of the extension period that is beyond the original expiration date” is the beginning of a new term. Id. at 989. So, on the first day of the extension, all rules and regulations that became effective during the previous term apply, and the Agency head has 30 days to review.

Now once again, Member DuBester was not pleased. He believes this decision is contrary to 5 U.S.C. § 7116(a)(7). According to his interpretation of the matter, a continuance provision is an agreement that the existing CBA remains in full force and effect until a new CBA is approved. Id. at 990. That would foreclose Agency head review. He even goes so far as to say the FLRA’s explanation of how it determined that the extended agreement is in “a meaningful sense” not the same one in effect “is—to put it mildly—novel.” Shazam! Id. at 991.

Well, there you have it. As I said in my previous article, none of these three decisions eliminate the bargaining rights of unions. But they do tilt in the agencies’ favor. Count on all three being appealed by the unions. Stay tuned. And for now, have fun agencies. Boehm@FELTG.com

[Editor’s note: Want to learn more about these and other recent noteworthy FLRA decisions, such as the recent decision that dealt a “major blow” to the 2017 VA Accountability and Whistleblower Protection Act, and their impact on your agency? Register now for What’s Going on at the FLRA? Case Law Updates and More on December 8 from 1 – 2 pm ET.]