An Appeals Court Shut Down ‘Drive-By’ FLRA Rulings on Midterm Bargaining and Zipper Clauses

A federal appeals court on Friday criticized the Federal Labor Relations Authority for “drive-by procedure” and “non sequitur” reasoning when it struck down a controversial 2020 policy statement that severely hampered federal employee unions’ ability to negotiate over issues that come up over the course of a collective bargaining agreement.

In September 2020, the Republican majority on the FLRA reversed decades of precedent, ruling that federal labor law no longer guarantees unions the right to engage in midterm bargaining to negotiate over matters not addressed in a union contract—instead, unions must bargain over that right when negotiating a new collective bargaining agreement. The decision also made zipper clauses, which limit negotiations that occur during the term of a union contract, mandatory subjects of bargaining.

Adding to the controversy was the fact that this decision came via the issuance of a policy statement, a rare mechanism employed by the FLRA aimed at resolving issues to reduce the frequency of litigation, rather than a concrete dispute between labor and management at an agency. Prior to 2020, when members appointed by President Trump issued a string of policy statements to upend long-held precedent, the FLRA had not issued a single policy statement in more than 35 years.

Following the decision, the American Federation of Government Employees, the National Treasury Employees Union and the American Federation of State, County and Municipal Employees all sued the FLRA before the U.S. Court of Appeals for the D.C. Circuit. In an 18-page decision Friday striking down the FLRA’s policy statement, a three-judge panel led by U.S. Circuit Judge Cornelia Pillard said the FLRA “miscast” the Supreme Court ruling undergirding the very precedent the agency overturned.

“The text the Authority leans on as showing the ‘one important respect’ in which the statute differentiates [between term and midterm bargaining] in fact makes no distinction at all,” Pillard wrote. “It says only that the parties must ‘meet and negotiate in good faith for the purposes of arriving at a collective bargaining agreement’—whether in term or midterm negotiations. Indeed, the Supreme Court in [NFFE Local 1309 v. Interior] held that the very phrase on which the Authority here relies does not differentiate [between term and midterm bargaining], so that text cannot alone impart the meaning the policy statement ascribes to it.”

The court also criticized the FLRA over its claim that despite taking away unions’ intrinsic right to negotiate over the course of a collective bargaining agreement, it had not overturned NFFE Local 1309 v. Interior.

“The policy statement commented that, following Local 1309, the Authority ‘could resolve’ the textual ambiguity [on midterm bargaining] and ‘did so’ in Interior, but that it now deemed it ‘more appropriate’ to leave that question ‘to the parties,’” Pillard wrote. “But it did nothing of the sort. In fact, it flipped the baseline that the Authority, pursuant to the Supreme Court’s remand, had set in Interior to hold instead that the statute does not require midterm bargaining. Under the guise of neutrally declining to exercise the policy authority it wielded, the Authority answered the precise question it simultaneously said it ‘could’ but did not resolve.”

Because the FLRA’s decision making zipper clauses a mandatory subject of bargaining was, by the agency’s own admission, predicated on stripping unions’ of the statutory right to negotiate during the term of a contract, the court threw that out too. The judges took particular issue with the FLRA casting zipper clauses merely as a “technique to assist” in negotiations.

“The authority reasoned that zipper clauses could constitute one such technique because they clarify the scope and timing of negotiations,” the court stated. “That reasoning is a non sequitur. The relevant question is whether the statute explicitly or by unambiguous implication gives either party a right. If it does, that right is a unilateral right—even if doing away with it might simplify negotiations.”

In a statement, NTEU National President Tony Reardon, whose union has challenged a number of other Trump-era FLRA policy statements, applauded the court for restoring the “balance of power” to federal labor-management relationships.

“For decades, the federal labor statute has been interpreted to give unions the right to bargain over issues that arise during the term of a collective bargaining agreement, if the contract does not address that issue,” Reardon said. “NTEU was instrumental in establishing this statutory right to union-initiated ‘midterm’ bargaining . . . The FLRA erased this longstanding right, but now the D.C. Circuit’s reversal of the FLRA’s ruling means that this crucial collective bargaining right once again exists.”