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Federal Agency Heads May Not Review CBA Extended Under Continuance Clause or Enforce Conflicting Regulations Until CBA Is Renegotiated: DC Circuit
Practical Law Legal Update w-036-5251 (Approx. 3 pages)
Federal Agency Heads May Not Review CBA Extended Under Continuance Clause or Enforce Conflicting Regulations Until CBA Is Renegotiated: DC Circuit
by Practical Law Labor & Employment
| Published on 05 Aug 2022 • USA (National/Federal) |
In National Treasury Employees Union v. FLRA, the DC Circuit held that the triggering of a collective bargaining agreement (CBA) continuance clause does not permit a second round of review by federal agency heads or enforcement of conflicting regulations that became effective after the original CBA.
On August 2, 2022, in National Treasury Employees Union v. FLRA, the DC Circuit held that the triggering of a collective bargaining agreement (CBA) continuance clause does not permit either:
- A second round of review by federal agency heads.
- Enforcement of conflicting regulations that became effective after the original CBA.
The DC Circuit noted that:
- Section 7114(c) of the FLRA permits agency-head review "30 days from the date the agreement is executed" (5 U.S.C. § 7114(c)(2)).
- A continuance clause remains in effect only while the parties continue to disagree over the terms of any successor CBA. The invocation or operation of a continuance clause does not execute a new CBA. A continuance clause "simply lengthens the existing agreement for a new period of time." (Eastham v. Chesapeake Appalachia, LLC, 754 F.3d 356, 362 (6th Cir. 2014) (applying Ohio law) (emphasis added); see also Nebo Ventures, LLC v. NovaPro Risk Sols., LP, 324 Ga. App. 836, 752 S.E.2d 18, 27 (2013).)
- Section 7116(a)(7) forbids employing agencies from enforcing most regulations that conflict with a collective bargaining "agreement" that was "in effect" before the regulation was issued (5 U.S.C. § 7116(a)(7)).
- Contract extensions preserve an existing CBA rather than replace it. An extended contract is the same "agreement" that was "in effect" before the extension. As long as it remains in effect, agencies may not enforce new regulations that conflict with it.
For more information, see Federal Sector Subjects and Scope of Collective Bargaining Chart.