Labor Authority Seeks Comments on What Happens With Existing Union Contracts During Negotiations for New Ones

The agency that governs labor-management relationships in the federal government is asking for input on what should happen with existing union contracts while labor groups and federal agencies negotiate a new collective bargaining agreement.

In a memo set to be published to the Federal Register Thursday, the Federal Labor Relations Authority said it has been asked by the Agriculture Department to clarify the rules governing an obscure part of the collective bargaining process, as third-party arbitrators have cited different FLRA precedent on the issue.

The crux of the matter is this: should an existing collective bargaining agreement be subject to agency head review when it is renewed automatically on an ad hoc basis until a union and agency can reach agreement on a new contract?

When a union and agency decide to come up with a new collective bargaining agreement, the existing or expiring agreement is automatically renewed until they can ratify and implement the new contract. If the existing contract is subject to agency head review, management would be able to unilaterally axe provisions of the old contract, provided those provisions conflict with new laws or regulations that were implemented after the contract was originally ratified.

In recent weeks, the FLRA has denied a number of different requests for a so-called “general statement of policy or guidance” seeking to narrow agencies’ bargaining obligations, most requested by the Agriculture Department. This request appears to be different in that it actually highlights a discrepancy in how some independent arbitrators interpret federal labor law, specifically what is called a “continuance provision.”

According to the Agriculture Department’s request, some arbitrators rely on the FLRA case U.S. Department of the Army, Headquarters III Corps and Fort Hood to conclude that when parties agree to negotiate a new contract, the agency cannot seek to implement new rules and regulations until the new contract is ratified.

“USDA asserts that some arbitrators interpret continuance provisions to mean that, once renegotiations are requested, the existing agreement does not expire until renegotiations are complete, even if the agreement specifies an expiration date that passes during renegotiations,” FLRA wrote. “According to USDA, the consequence of such an interpretation is that for as long as the parties’ renegotiations take, an agency may not enforce rule or regulation changes that occurred during the agreement’s originally specified term.”

But other arbitrators cite another FLRA case, U.S. Department of Commerce, Patent and Trademark Office, to conclude that once the old union contract reaches its original expiration date, management can move to implement new rules that conflict with that agreement regardless of whether negotiations on a new contract are ongoing. Under Commerce, when a contract expires while negotiations continue, a new short-term agreement automatically takes effect, allowing the agency to implement new regulations.

USDA said that it prefers this interpretation, and that the Fort Hood standard is “unjust” because agencies that elect to allow a contract to roll over as-is may implement regulations more quickly than agencies who choose to renegotiate with a union.

“According to USDA, [the Commerce] interpretation allows an agency to enforce rule and regulations changes that occurred during the agreement’s originally specified term throughout most, if not all, of the parties’ renegotiations without violating the statute,” the FLRA wrote. “But USDA contends that an agency cannot know in advance whether an arbitrator will interpret a continuance provision in the manner discussed in Fort Hood or Commerce.”

American Federation of Government Employees National Secretary-Treasurer Everett Kelley said in a statement that USDA's request is "not consistent with the law or the facts."

"We are already bargaining a new contract for USDA food inspection workers," Kelley said. "The current contract, which USDA agreed to, clearly states that the existing contract will remain in force until a new agreement is signed. There is no valid reason to deviate from what the law and contract require."

If the Agriculture Department is successful in making the Commerce interpretation standard among arbitrators, agencies could implement rule changes, like the provisions of President Trump's three controversial executive orders aimed at making it easier to fire federal workers and reducing the influence of labor unions in the federal sector, much more rapidly.

Comments on the issue are due to the FLRA by Feb. 20.

This story has been updated to include comments from federal employee groups.