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DC Circuit Vacates FLRA Policy Statement That Zipper Clauses Are Mandatory Bargaining Subjects
Practical Law Legal Update w-034-2938 (Approx. 4 pages)
DC Circuit Vacates FLRA Policy Statement That Zipper Clauses Are Mandatory Bargaining Subjects
by Practical Law Labor & Employment
| Law stated as of 31 Jan 2022 • USA (National/Federal) |
In Am. Fed'n of Gov't Employees, AFL-CIO v. Fed. Labor Relations Auth., the DC Circuit vacated the Federal Labor Relations Authority's (FLRA) Policy Statement that zipper clauses are mandatory subjects of collective bargaining in the federal sector.
On January 28, 2022, in Am. Fed'n of Gov't Employees, AFL-CIO v. Fed. Labor Relations Auth., the DC Circuit vacated a Policy Statement issued in 2020 by the Federal Labor Relations Authority (FLRA) that announced for the first time that zipper clauses are mandatory subjects of collective bargaining in the federal sector ( (DC Cir. Jan. 22, 2022)).
The DC Circuit explained that:
- A zipper clause is a clause that limits or forecloses (zips up) bargaining during the term of a collective bargaining agreement (CBA) over issues not covered by the agreement.
- Federal labor law treats some subjects of collective bargaining as mandatory and others as permissive, which means that:
- when parties bargain to impasse on mandatory subjects, the dissatisfied party may petition the Federal Service Impasses Panel (FSIP) to resolve the impasse; and
- permissive subjects are those that a party may choose to, but need not, bargain and the opposing party may not bring the dispute to the FSIP.
- The FLRA issued a Policy Statement in 2020 that announced for the first time that zipper clauses are mandatory bargaining subjects.
- The FLRA's Policy Statement first held that the Federal Service Labor-Management Relations Statute (FSLMRS) does not entitle employees to demand midterm bargaining even when the CBA is silent on midterm bargaining.
- The FLRA relied on that holding as necessary to its conclusion that proposed zipper clauses expressly foreclosing midterm bargaining are mandatory bargaining subjects.
The DC Circuit vacated the FLRA's Policy Statement as arbitrary and capricious. The DC Circuit noted that:
- Matters relating to conditions of employment are presumptively mandatory bargaining subjects unless the FSLMRS "explicitly or by unambiguous implication" provides a party with "unilateral rights" to refuse to negotiate over a particular subject.
- The FLRA held in 2000 that agencies must bargain during the term of a CBA on negotiable union proposals about matters not covered by the CBA unless the union waived the right to midterm bargaining, but left open the question of whether zipper clauses were mandatory or permissive subjects of bargaining (US Dep't of the Interior, Washington, DC, 56 F.L.R.A. 45 (2000)).
- The FLRA rejected a request in November 2019 to reconsider Interior and described the case as its "seminal" precedent recognizing the statutory right to midterm bargaining. Ten months later, the FLRA reversed the Interior holding in the Policy Statement and concluded that the FSLMRS does not require midterm bargaining.
The DC Circuit held that the FLRA's holding that the FSLMRS does not require midterm bargaining was arbitrary and capricious because the FLRA:
- Failed to offer a reasoned explanation for its decision to reverse decades-old precedent in Interior.
- Mischaracterized Supreme Court precedent.
- Based its holding on an unsupported premise that its Policy Statement increased choice for the parties.
- Inaccurately described itself as taking no position on the question of whether the FSLMRS requires midterm bargaining.
Because the FLRA relied on this new holding as necessary to its holding about zipper clauses and the DC Circuit vacated the first holding as arbitrary and capricious, the court also vacated the FLRA's holding that zipper clauses are mandatory subjects of bargaining.
For more information on mandatory and permissive subjects of collective bargaining in the federal sector, see Federal Sector Subjects and Scope of Collective Bargaining Chart.