DC Circuit Vacates Second FLRA Policy Statement on Federal Agencies' Duty to Bargain over Employment Terms and Conditions | Practical Law

DC Circuit Vacates Second FLRA Policy Statement on Federal Agencies' Duty to Bargain over Employment Terms and Conditions | Practical Law

In Am. Fed'n of Gov't Emps., AFL-CIO v. Fed. Lab. Rels. Auth., the DC Circuit vacated the Federal Labor Relations Authority's (FLRA) September 30, 2020 general statement of policy rejecting the de minimis standard and adopting the previously rejected substantial-impact threshold on Federal agencies' duty to bargain over employment terms and conditions.

DC Circuit Vacates Second FLRA Policy Statement on Federal Agencies' Duty to Bargain over Employment Terms and Conditions

by Practical Law Labor & Employment
Published on 07 Feb 2022 • USA (National/Federal)
In Am. Fed'n of Gov't Emps., AFL-CIO v. Fed. Lab. Rels. Auth., the DC Circuit vacated the Federal Labor Relations Authority's (FLRA) September 30, 2020 general statement of policy rejecting the de minimis standard and adopting the previously rejected substantial-impact threshold on Federal agencies' duty to bargain over employment terms and conditions.
On February 1, 2022, in Am. Fed'n of Gov't Emps., AFL-CIO v. Fed. Lab. Rels. Auth., the DC Circuit held that the Federal Labor Relations Authority's (FLRA) decision to abandon its de minimis exception in favor of a substantial-impact threshold on Federal agencies' duty to bargain over employment terms and conditions was:
  • Insufficiently reasoned.
  • Arbitrary and capricious in violation of Section 706 of the Administrative Procedure Act (5 U.S.C. § 706(2)(A)).
( (D.C. Cir. Feb. 1, 2022).)
The DC Circuit noted that:
  • Certain federal employers are required to engage in collective bargaining with their employees' representatives whenever there is a management-initiated change to the "conditions of employment affecting such employees" (5 U.S.C. § 7103(a)(12)).
  • "Conditions of employment" include "personnel policies, practices, and matters affecting working conditions" with certain exceptions (5 U.S.C. § 7103(a)(14)). Since the mid-1980s, the FLRA has interpreted these statutory provisions to require collective bargaining over any workplace changes that have more than a de minimis effect on such working conditions.
  • In September 2020, the FLRA adopted a new standard that the duty to bargain is triggered only if a workplace change has "a substantial impact on a condition of employment" (US Dep't of Educ., 71 F.L.R.A. 968, 971 (2020)).
The DC Circuit found that:
  • The FLRA falls short on explaining the purported flaws of the de minimis standard.
  • The FLRA's condemnation of the de minimis standard fails to account for the FLRA's own past policy choices and the DC Circuit's decisions upholding them.
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.