The appeals court found that triggering a continuance provision of a union contract does not constitute executing a new agreement that would be subject to agency head review.

The appeals court found that triggering a continuance provision of a union contract does not constitute executing a new agreement that would be subject to agency head review. David Talukdar / Getty Images

An Appeals Court Has Once Again Overruled a Trump-era FLRA Policy

Shortly before the 2020 election, labor authority Republicans had unraveled decades of precedent, finding that agencies may begin implementing new governmentwide rules when union contracts are extended for the purposes of negotiating a new agreement.

A federal appeals court on Tuesday once again overturned a controversial Trump-era change in precedent from the Federal Labor Relations Authority, this time regarding when agencies may institute new governmentwide rules upon the expiration of a union contract.

For decades, if the federal government issued a new rule that made changes to working conditions at agencies, those agencies would have to wait until it was time to negotiate a new contract with their organized bargaining units in order to implement the regulations. That’s because although unions cannot negotiate over a governmentwide rule, they can negotiate over the impact of that rule on the workforce.

But in September 2020, the then-Republican majority on the FLRA upended that precedent in a general statement of policy, requested by the Agriculture Department. Instead, the FLRA said that when an agency and a union agree to extend an expiring collective bargaining agreement in perpetuity for the purposes of negotiating a successor contract, that agreement constitutes the execution of a new agreement, at which point it can undergo agency head review and new governmentwide rules can be implemented.

The National Treasury Employees Union appealed the decision in federal court. A three-judge panel on the U.S. Court of Appeals for the D.C. Circuit heard oral arguments for the case last September, and spent much of their time focused on the basic tenets of contract law.

Writing for the court on Tuesday, U.S. Circuit Judge Gregory Katsas, an appointee of former President Trump, ruled in favor of NTEU, finding that triggering a continuance provision of a union contract does not constitute executing a new agreement that would be subject to agency head review.

Katsas wrote that the idea that the continuance of an existing contract triggers the execution of a new agreement is problematic, particularly since it is frequently only triggered because the parties are in a state of disagreement.

“The [FLRA] guidance posits the execution of a new agreement—and thus a second round of agency-head review—whenever an existing agreement is extended under a continuance clause,” he wrote. “But a continuance clause takes effect when either party seeks unilaterally to renegotiate the terms of an expiring agreement. It manifests the parties’ intent to be bound by the terms of their original agreement pending further negotiations. And it remains in effect only while the parties continue to disagree over the terms of any successor agreement.”

The court also criticized the idea that a continuance provision triggers a new term of the original contract.

“As shown above, contract extensions preserve an existing agreement rather than supplant it with a new one,” Katsas wrote. “Thus, an extended contract is the same ‘agreement’ that was ‘in effect before the extension. And so long it remains in effect, the employing agency may not enforce new regulations that conflict with it.”

With Tuesday’s decision, all three of the FLRA’s precedent-changing decisions issued together in September 2020 have been overturned in court. In a statement, NTEU National President Tony Reardon applauded the ruling.

“This is the third time in the past year that NTEU and its fellow unions have successfully challenged unreasoned, erroneous FLRA policy statements in court,” he said. “Because of this victory, agencies are once again prohibited from prematurely implementing conflicting rules and regulations upon the automatic extension of a contract. Agencies and unions will continue to benefit from the stability they bargain for when they agree on these automatic extensions, and federal employees and their unions will be better positioned to bargain on new regulations as part of more comprehensive negotiations.”

X
This website uses cookies to enhance user experience and to analyze performance and traffic on our website. We also share information about your use of our site with our social media, advertising and analytics partners. Learn More / Do Not Sell My Personal Information
Accept Cookies
X
Cookie Preferences Cookie List

Do Not Sell My Personal Information

When you visit our website, we store cookies on your browser to collect information. The information collected might relate to you, your preferences or your device, and is mostly used to make the site work as you expect it to and to provide a more personalized web experience. However, you can choose not to allow certain types of cookies, which may impact your experience of the site and the services we are able to offer. Click on the different category headings to find out more and change our default settings according to your preference. You cannot opt-out of our First Party Strictly Necessary Cookies as they are deployed in order to ensure the proper functioning of our website (such as prompting the cookie banner and remembering your settings, to log into your account, to redirect you when you log out, etc.). For more information about the First and Third Party Cookies used please follow this link.

Allow All Cookies

Manage Consent Preferences

Strictly Necessary Cookies - Always Active

We do not allow you to opt-out of our certain cookies, as they are necessary to ensure the proper functioning of our website (such as prompting our cookie banner and remembering your privacy choices) and/or to monitor site performance. These cookies are not used in a way that constitutes a “sale” of your data under the CCPA. You can set your browser to block or alert you about these cookies, but some parts of the site will not work as intended if you do so. You can usually find these settings in the Options or Preferences menu of your browser. Visit www.allaboutcookies.org to learn more.

Sale of Personal Data, Targeting & Social Media Cookies

Under the California Consumer Privacy Act, you have the right to opt-out of the sale of your personal information to third parties. These cookies collect information for analytics and to personalize your experience with targeted ads. You may exercise your right to opt out of the sale of personal information by using this toggle switch. If you opt out we will not be able to offer you personalised ads and will not hand over your personal information to any third parties. Additionally, you may contact our legal department for further clarification about your rights as a California consumer by using this Exercise My Rights link

If you have enabled privacy controls on your browser (such as a plugin), we have to take that as a valid request to opt-out. Therefore we would not be able to track your activity through the web. This may affect our ability to personalize ads according to your preferences.

Targeting cookies may be set through our site by our advertising partners. They may be used by those companies to build a profile of your interests and show you relevant adverts on other sites. They do not store directly personal information, but are based on uniquely identifying your browser and internet device. If you do not allow these cookies, you will experience less targeted advertising.

Social media cookies are set by a range of social media services that we have added to the site to enable you to share our content with your friends and networks. They are capable of tracking your browser across other sites and building up a profile of your interests. This may impact the content and messages you see on other websites you visit. If you do not allow these cookies you may not be able to use or see these sharing tools.

If you want to opt out of all of our lead reports and lists, please submit a privacy request at our Do Not Sell page.

Save Settings
Cookie Preferences Cookie List

Cookie List

A cookie is a small piece of data (text file) that a website – when visited by a user – asks your browser to store on your device in order to remember information about you, such as your language preference or login information. Those cookies are set by us and called first-party cookies. We also use third-party cookies – which are cookies from a domain different than the domain of the website you are visiting – for our advertising and marketing efforts. More specifically, we use cookies and other tracking technologies for the following purposes:

Strictly Necessary Cookies

We do not allow you to opt-out of our certain cookies, as they are necessary to ensure the proper functioning of our website (such as prompting our cookie banner and remembering your privacy choices) and/or to monitor site performance. These cookies are not used in a way that constitutes a “sale” of your data under the CCPA. You can set your browser to block or alert you about these cookies, but some parts of the site will not work as intended if you do so. You can usually find these settings in the Options or Preferences menu of your browser. Visit www.allaboutcookies.org to learn more.

Functional Cookies

We do not allow you to opt-out of our certain cookies, as they are necessary to ensure the proper functioning of our website (such as prompting our cookie banner and remembering your privacy choices) and/or to monitor site performance. These cookies are not used in a way that constitutes a “sale” of your data under the CCPA. You can set your browser to block or alert you about these cookies, but some parts of the site will not work as intended if you do so. You can usually find these settings in the Options or Preferences menu of your browser. Visit www.allaboutcookies.org to learn more.

Performance Cookies

We do not allow you to opt-out of our certain cookies, as they are necessary to ensure the proper functioning of our website (such as prompting our cookie banner and remembering your privacy choices) and/or to monitor site performance. These cookies are not used in a way that constitutes a “sale” of your data under the CCPA. You can set your browser to block or alert you about these cookies, but some parts of the site will not work as intended if you do so. You can usually find these settings in the Options or Preferences menu of your browser. Visit www.allaboutcookies.org to learn more.

Sale of Personal Data

We also use cookies to personalize your experience on our websites, including by determining the most relevant content and advertisements to show you, and to monitor site traffic and performance, so that we may improve our websites and your experience. You may opt out of our use of such cookies (and the associated “sale” of your Personal Information) by using this toggle switch. You will still see some advertising, regardless of your selection. Because we do not track you across different devices, browsers and GEMG properties, your selection will take effect only on this browser, this device and this website.

Social Media Cookies

We also use cookies to personalize your experience on our websites, including by determining the most relevant content and advertisements to show you, and to monitor site traffic and performance, so that we may improve our websites and your experience. You may opt out of our use of such cookies (and the associated “sale” of your Personal Information) by using this toggle switch. You will still see some advertising, regardless of your selection. Because we do not track you across different devices, browsers and GEMG properties, your selection will take effect only on this browser, this device and this website.

Targeting Cookies

We also use cookies to personalize your experience on our websites, including by determining the most relevant content and advertisements to show you, and to monitor site traffic and performance, so that we may improve our websites and your experience. You may opt out of our use of such cookies (and the associated “sale” of your Personal Information) by using this toggle switch. You will still see some advertising, regardless of your selection. Because we do not track you across different devices, browsers and GEMG properties, your selection will take effect only on this browser, this device and this website.