OFFICE OF PERSONNEL MANAGEMENT
LABOR-MANAGEMENT RELATIONS ADVISORY #99-1
DATE:: March 18, 1999
SUBJECT: Supreme Court Says That It Is for FLRA, Not the Courts,
To Determine Whether, and Under What Circumstances,
There is a Midterm Bargaining Duty.
National Federation of Federal Employees, Local 1309 v. Department of the Interior et al., and
Federal Labor Relations Authority v. Department of the Interiotr et al., Supreme Court, Nos. 97-1184 and 97-1243, March 3, 1999.
In a 5-4 decision, the Supreme Court (Justice Breyer, joined by Justices Stevens, Kennedy,
Souter, and Ginsberg) held that because the Federal Service Labor-Management Relations
Statute (FSLMRS) is ambiguous with respect to midterm bargaining, it is for the Federal Labor
Relations Authority (FLRA), not the courts, to determine, in light of FLRA's delegated authority
and specialized expertise in the field of labor relations, "whether, when, and where midterm
bargaining is required[.]" FLRA, says the Court, "is entitled to considerable deference when it
exercises its special function of applying the general provisions of the Act to the complexities'
of federal labor relations. Bureau of Alcohol, Tobacco and Firearms v. FLRA, 464 U.S. 89, 97
(1983) . . . ."
In rejecting the "absolutist" views of the 4th and D.C. Circuits, the Court said the following:
[W]here the Agency and the Fourth Circuit find a clear statutory denial of any
midterm bargaining obligation, we find ambiguity created by the Statute's use of
general language that might, or might not, encompass various forms of midterm
bargaining. That kind of statutory ambiguity is inconsistent both with the Fourth
Circuit's absolute reading of the Statute and also with the D.C. Circuit's similarly
absolute, but opposite, reading. . . . The statutory ambiguity is perfectly consistent, however, with the conclusion that Congress delegated to the Authority the
power to determine--within appropriate legal bounds, see, e.g., 5 U.S.C. § 706
(Administrative Procedure Act); Chevron U.S.A. Inc. v. Natural Resources
Defense Council, Inc., 467 U.S. 837 (1984)--whether, when, where, and what sort
of midterm bargaining is required. The Statute's delegation of rulemaking,
adjudicatory, and policymaking powers to the Authority supports this conclusion.
The Court rejected, among other things, the agency's contention that § 7114(a)(4)'s reference to
"arriving at" an agreement precludes bargaining intended to "supplement" the parties' basic
agreement. In the Court's view, "these linguistic arguments, while logical, make too much of too
little. One can easily read 'arriving at a collective bargaining agreement' as including an
agreement reached at the conclusion of midterm bargaining . . . ." The Court also rejected the
agency's claim that "collective bargaining agreement" is a "term of art" that excludes midterm
Nor was the Court persuaded by the agency's policy arguments. According to the agency,
interpreting the statute to provide for midterm bargaining would give unions an incentive to
engage in piece-meal bargaining and would effectively eliminate compromise from the
bargaining process. Although private sector unions have the right to bargain midterm, that right
is rarely exercised because they are reluctant to strike midterm. No comparable disincentive
exists in the Federal program where any and all impasses can be referred to the Impasses Panel
for final resolution and the only economic costs of disagreement are the fees that might have to
be paid to an interest arbitrator, should FSIP order use of outside interest arbitration.
But the Court looked at the other side of the policy coin:
Other policy concerns, however, argue for a different reading of the Statute.
Without midterm bargaining, for example, will it prove possible to find a
collective solution to a workplace problem, say a health or safety hazard, that first
appeared midterm? The Statute's emphasis upon collective bargaining as
"contribut[ing] to the effective conduct of public business," 5 U.S.C. §
7101(a)(1)(B), suggests that it would favor joint, not unilateral, solutions to such
midterm problems. . . . [T]he Agency's policy arguments illustrate the need for
the Authority's elaboration or refinement of the basic statutory collective-bargaining obligation; they illustrate the appropriateness of judicial deference to
considered Authority views on the matter . . . .
The Agency's legislative history argument fared no better. Under the program established by
Executive Order 11491, the Assistant Secretary of Labor for Labor-Management Relations held
that an agency needn't bargain on union midterm proposals. The Court, noting that this single
decision had not been reviewed by FLRA's predecessor agency (the Federal Labor Relations
Council), said that "a single, unreviewed decision . . . does not demonstrate the kind of historical
practice that one might assume would be reflected in the Statute[.]" Nor was the Court
persuaded by references to a Senate Report's reference to negotiations leading to a basic
collective bargaining agreement. The Senate Report, the Court noted, pertained to a bill that
The Court also rejected the claim that § 7106(b) authorizes limited midterm bargaining (a theme
taken up at length in the dissenting opinion written by Justice O'Connor). Section 7106(b), said
the Court, deals with the scope of bargaining, not with the timing of bargaining:
By its terms . . . subsection (b) does nothing more than create an exception to
subsection (a) . . . . Because § 7106(b) chiefly addresses the subject matter of
bargaining and not the timing, one could reasonably conclude that while that
subsection contemplates midterm bargaining in the circumstances there specified,
the duty to bargain midterm finds its source elsewhere in the Statute. Hence, the
management rights provision seems to hurt, as much as to help, the Agency's
Noting that FLRA initially held that there was no duty to bargain on union-initiated midterm
bargaining requests, but that it had changed its view after the D.C. Circuit issued its "absolutist"
view to the contrary, the Court remanded the cases to the Authority to give it an "opportunity to
consider these questions aware that the Statute permits but does not compel, the conclusion it
In a 2-part dissenting opinion written by Justice O'Connor (joined by Chief Justice Rhenquist
and, only with respect to the first part of her opinion, by Justices Scalia and Thomas), Justice
O'Connor argued that the statute wasn't ambiguous and, in providing for impact and implementation bargaining implicitly precluded a general midterm bargaining duty. In the second part
(not joined by Justices Scalia and Thomas), she argued that "even if there were some ambiguity
in the Federal Labor Statute, I would hold that the agency's interpretation of the Federal Labor
Statute is inferior to the natural, and most plausible, reading of that Statute--that there is no
general duty to bargain midterm."
To sum up, the Supreme Court DID NOT DECIDE whether the FSLMRS provides for a general
duty to bargain midterm. It instead remanded the matter for FLRA to decide. In the process it
sent a message to the circuit courts of appeal to accord deference to whatever conclusion FLRA
reaches. FLRA, in turn, is expected to consider some of the questions raised by the agency in
reaching its decision. The fact that the vote was as close as it can possibly get may or may not
have a bearing on how FLRA comes down on the issue. We'll just have to wait for FLRA to tell
us whether, and to what extent, and under what circumstances, there is a duty to engage in
If agencies have any questions on the material contained in this advisory, please call 202-606-2930. Our email address is firstname.lastname@example.org.
Page Updated 24 February 2000