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  • NTEU Prevails in Challenges to Harmful FLRA Decisions Limiting Collective Bargaining Rights
    Apr 03, 2022

    Collective bargaining is a union’s core function. In the last month, NTEU prevailed in two court cases that reversed Federal Labor Relations Authority (FLRA) decisions that limited or eliminated important collec­tive bargaining rights.

    The first case involved an FLRA decision that eliminated unions’ longstanding statutory right to initiate midterm bargaining over topics not contemplated during term bargaining. This right is a critical one because unforeseen events — such as a global pandemic — often affect conditions of employment. The FLRA, however, reversed over thirty-three years of its precedent and concluded that the federal labor statute does not require an agency to engage in union-initiated midterm bargaining. Instead, it held that a union must fight for the right to initiate midterm bargaining during term negotiations. 

    In the same decision, the FLRA also held that so-called “zipper clauses” are mandatory subjects of bargaining that could be forced to impasse. A zipper clause proposal is one that, if accepted, forecloses midterm bargaining. The FLRA’s ruling meant that an agency could force a zipper clause proposal to impasse, where, ultimately, a body of political appointees would be authorized to impose a zipper clause into a term agreement over a union’s objections. 

    NTEU and two other unions challenged the FLRA’s decision, and the three cases were consolidated. After briefing and argument by NTEU counsel, the D.C. Circuit issued its decision on January 28, 2022. 

    The Court unanimously reversed the FLRA’s rulings. The Court was highly critical of the FLRA’s decision, which it described as involving “drive-by procedure and conclusory reasoning.” The Court’s decision restored the long-standing right to union-initiated midterm bargaining. And it ensured that zipper clause proposals cannot unwillingly be forced upon unions. 

    The second favorable D.C. Circuit decision involved unions’ right to bargain over many management-initiated changes to working conditions. Previously, agencies were required to bargain over any management-initiated change to a condition of employment that had more than a “de minimis” effect. But the FLRA abandoned that standard and held, instead, that an agency must bargain over only a “clear and meaningful” substantial change. This meant that fewer matters would be negotiable, decreasing the influence of unions in the workplace. 

    NTEU and two other unions challenged the FLRA’s decision, and, again, the three cases were consolidated. After briefing and argument, the D.C. Circuit unanimously vacated the FLRA decision on February 1, 2022. The Court restored the de minimis standard. It held that the FLRA’s decision “to abandon its longstanding precedents and adopt the substantial impact standard was not sufficiently reasoned[.]” The Court thus held that the “cursory policy statement that the FLRA issued to justify its choice to abandon thirty-five years of precedent... is arbitrary and capricious.” 

    With these recent decisions, the D.C. Circuit has now sided with NTEU in four cases against this FLRA in the last two years. NTEU hopes that the FLRA will heed the Court’s continued criticisms and engage in reasoned decision-making going forward.


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