Union members flood the Capitol grounds for a rally in September 2019.

Union members flood the Capitol grounds for a rally in September 2019. Chelsea Bland / AFGE

Labor Authority Abandons Decades of Precedent, Eviscerates Union Bargaining Rights

Across multiple decisions on Wednesday, the agency that governs federal sector labor law removed unions’ right to midterm bargaining and made it harder for unions to demand agencies bargain over changes to working conditions.

The Federal Labor Relations Authority again overturned decades of precedent this week in a trio of decisions that collectively hamstring federal employee unions’ ability to negotiate with agencies.

The first decision changes the standard for whether an agency policy change triggers a duty to bargain over its implementation and impact on employees from “greater than de minimis” to “substantial.” A second decision finds that federal labor law “neither requires nor prohibits midterm bargaining” and makes zipper clauses, which limit negotiations during the term of a union contract, mandatory subjects of bargaining.

And the final 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. The three rulings, all the result of requests for “general statements of policy” from the Trump administration and approved by 2-1 votes along partisan lines, severely hamper the ability of unions to negotiate on issues that did not come up during formal contract negotiations.

The majority stated that it needed to raise the standard for whether management must negotiate over implementation of a policy change because the de minimis standard had “negatively impacted labor-management relations” and “has been drained of any determinative meaning.” Proponents cited the fact that the National Labor Relations Board, which governs labor-management relations in the private sector, uses the “substantial” metric for whether impact bargaining must take place.

But Ernest DuBester, the lone Democrat on the FLRA, assailed the decision, arguing it goes against congressional intent and federal appellate court precedent. He said that the “de minimis” standard was put in place precisely because federal managers already have broader rights compared to their private-sector counterparts, and that the agencies requesting the change have provided no evidence that negotiations have negatively impacted labor-management relations.

“It is worth noting that the [Association of Administrative Law Judges v. FLRA] decision found ‘little indication’ that the de minimis exception as applied to impact bargaining had resulted in significant confusion,” DuBester wrote. “In fact, the court expressed confidence that if the authority ever found that its administration of the de minimis exception became ‘more burdensome than would be the alternative of bargaining over trivia,’ the authority would ‘conclude interests of effective and efficient government’ would be ‘better served by dispensing with the exception.’ Of course, that is the opposite of what the majority has done today.”

In the decision on zipper clauses, although the Office of Personnel Management had requested only that the FLRA clarify that such clauses are mandatory subjects of bargaining, the labor authority went much further, ruling that the statute does not guarantee unions the right to engage in midterm bargaining at all.

“Although the Supreme Court [in 1998] recognized that the authority could resolve that ambiguity [over midterm bargaining], and the authority did so, we find it more appropriate to recognize that the statute neither requires nor prohibits midterm bargaining,” FLRA Chairwoman Colleen Duffy Kiko wrote. “Instead, the statute leaves midterm-bargaining obligations to the parties to resolve as part of their term negotiations.”

DuBester, again dissenting, blasted his colleagues for not providing a sufficient justification for changing precedent, and accused them of misrepresenting the Supreme Court’s decision in National Federation of Federal Employees Local 1309 v. Interior.

“Indeed, the court in NFFE, Local 1309 rejected this very premise, finding that ‘one can easily read’ the language of [the statute] ‘as including an agreement reached at the conclusion of midterm bargaining,’” he wrote. “Tellingly, the majority offers no explanation for its conclusion that the duty to ‘meet and negotiate in good faith for the purposes of arriving at a collective bargaining agreement’ . . . pertains solely to negotiations leading to a term agreement.”

He argued the decision, instead of preventing future litigation—for which FLRA policy states general statements of policy should be reserved—will in fact cause upheaval across the federal government.

“Unions wishing to preserve their ability to initiate midterm bargaining will now be required to trade something of value at the bargaining table in hopes of securing what was, until today, a statutory right,” DuBester wrote. “In the meantime, unions that failed to secure a reopener clause in their current term agreement—because, of course, the agreement was negotiated under the assumption that such clauses were unnecessary—are apparently out of luck. Moreover, during any subsequent term bargaining, agencies will now be free to bargain to impasse over zipper clauses, thus allowing these provisions to be unilaterally imposed on unions through statutory impasse proceedings.”

DuBester’s dissents went further than most opinions he has written in recent months, directly impugning the motives of his colleagues.

“Given the absence of any plausible rationale for today’s policy statement—and the disingenuous manner in which it was decided—I can only conclude that the majority’s decision is driven solely by its disdain for the role of collective bargaining under our statute and its relentless effort to marginalize the role of unions in the federal sector,” he wrote.

Robert Tobias, distinguished practitioner in residence at American University’s Key Executive Leadership Program and a former president of the National Treasury Employees Union, said the decisions “ignore the entire history of federal-sector labor management relations.”

“The idea was to have a broad management rights clause, but then management has the obligation to bargain over appropriate procedures and arrangements, or what we call impact and implementation,” Tobias said. “So to say that we have to adopt this substantial impact test [to policy changes] because it’s that way in the private sector ignores the much broader scope of bargaining in the private sector . . . It really destroys any balance in the labor-management relationship.”

The National Treasury Employees Union said on Thursday that it has already filed petitions for review of all three decisions to the U.S. Court of Appeals for the D.C. Circuit. And American Federation of Government Employees National President Everett Kelley called the Republican members of the FLRA “union-busting appointees” and called on the next administration to overturn these and other FLRA actions.

“These sham decisions further [President Trump’s] agenda of eroding the rights of unionized workers to the point of nonexistence and underscore the need for change in November,” Kelley said. “We will be pursuing all legal options to challenge these decisions. But make no mistake, these are just the most recent in a four-year string of meritless decisions that must be overturned by a new administration and a new FLRA, properly constituted, to restore fairness and decency to the federal government.”