House Democrat Calls on Labor Authority to Overturn 'Radical' Changes to Legal Precedent

The chairman of a House committee focused on federal workforce issues has called on the Federal Labor Relations Authority to rescind a trio of “radical policy decisions” issued by the agency in September that overturned decades of precedent and severely reduced the scope of matters over which unions may negotiate with agencies.

The decisions, all dated Sept. 30, together amount to a sea change in the rules governing federal labor-management relations. The first changes the standard for whether an agency policy change triggers a duty to bargain over implementation and impact on employees from “greater than de minimis” to “substantial,” while the second decision makes zipper clauses, which limit negotiations during the term of a union contract, mandatory subjects of bargaining.

More significantly, the second decision also overturns longstanding court and FLRA precedent by ruling that federal labor law “neither requires nor prohibits midterm bargaining,” a move that could effectively deny unions the ability to negotiate over matters not covered in a collective bargaining agreement if they did not already negotiate a reopener clause.

The third decision states that when an expiring union contract is renewed indefinitely while parties negotiate on a new contract, that is effectively a new agreement that is subject to agency head review and implementation of new governmentwide rules and regulations.

In a letter to FLRA Chairwoman Colleen Duffy Kiko on Monday, Rep. Gerry Connolly, D-Va., who serves as chairman of the House Oversight and Reform Committee’s subcommittee on government operations, blasted the agency’s series of 2-1 decisions as “extremist” and contrary to federal labor law. In each of the decisions, FLRA member Ernest DuBester, the lone Democratic appointee at the agency, issued scathing dissents that questioned the motives of his colleagues.

“I write to strongly object to three radical policy decisions released by the Federal Labor Relations Authority on September 30, 2020,” Connolly said. “The Republican two-member majority discarded decades of labor-management relations precedent and violated their own rules to achieve the goal of limiting collective bargaining for the almost 1.2 million federal employees represented by federal employee unions.”

The decision eviscerating unions’ rights to negotiate over matters not addressed in a union contract that may arise during the course of a collective bargaining agreement came in for particular criticism from Connolly, particularly in light of the COVID-19 pandemic, which has forced widespread changes to agencies’ workplace policies.

“The effect of the new policy denies both unions and management the obligation to initiate midterm bargaining unless they have negotiated for and secured that right in their contracts,” he wrote. “This is a radical change that makes the government less effective and efficient, not more. It is in the public interest for management and unions to negotiate responses to evolving situations that may arise at any time, as the current pandemic clearly demonstrates. If nothing else, the volatility of 2020 should have reinforced the necessity for midterm bargaining in the face of rapidly changing, life-altering conditions that directly affect labor-management relations.”

Connolly demanded that the FLRA overturn these decisions, particularly since he said they do not conform to the FLRA’s own decision-making policies. The FLRA’s governing regulations state that the agency should not issue “advisory opinions”—decisions that do not arise from a specific dispute with unique parties and underlying facts—but each of the decisions were the result of requests from agency leaders for “statements of policy or guidance.”

“The three decisions referenced above are radical in both substance and form,” Connolly wrote. “They are radical in substance because they overturn longstanding precedent, undermine both present and future collective bargaining agreements and upset the balance of rights and responsibilities that have long characterized federal labor-management relations. They are radical in form because the Republican majority went to the extreme lengths of violating the FLRA’s own prohibition and the Constitution’s prohibition on the judiciary against issuing advisory opinions.”