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Today, Congressman Gerry Connolly (D-VA), Chairman of the House Subcommittee on Government Operations, sent a letter to Colleen Duffy Kiko, Chairman of the Federal Labor Relations Authority (FLRA), objecting to three recent decisions that would severely limit the collective bargaining rights of federal employees. 

“I write to strongly object to three radical policy decisions released by the Federal Labor Relations Authority (FLRA) on September 30, 2020.  The Republican two-member majority discarded decades of labor-management relations precedent and violated their own rules to achieve the goal of limiting collective bargaining for the almost 1.2 million federal employees represented by federal employee unions,” Connolly wrote.

“The three decisions are radical in both substance and form,” Connolly added. “For those reasons, these recent decisions issued by a two-to-one Republican majority at the close of the Trump administration should be reconsidered in the future and overturned to reinstate precedents and customary practices that have governed these issues for decades.”

• Bargaining Over Management-Directed Policy Changes: The first decision came at the request of the U.S. Department of Agriculture (USDA) and the U.S. Department of Education for a general statement of policy or guidance on the duty to bargain over management-initiated policy changes.  The two-member Republican majority abandoned the FLRA's longstanding precedent that the duty to bargain is triggered for any non “de minimis” change.  The FLRA will now require bargaining only if the agency proposal is a “clear and meaningful” substantial change.   
• Engaging in Mid-Term Bargaining: The second FLRA decision came at the request of the Office of Personnel Management to clarify that zipper clauses, which limit negotiations during the term of a union contract,  are mandatory subjects of bargaining.  The FLRA Republican majority granted that request and then went much further, finding that federal labor law “neither requires nor prohibits midterm bargaining,” leaving “midterm bargaining obligations to the parties to resolve as part of term negotiations.” The effect of the new policy denies both unions and management the obligation to initiate midterm bargaining unless they have negotiated for and secured that right in their contract.
• Expiring Collective-Bargaining Agreements: The third decision came at the request of USDA’s Office of General Counsel about the longstanding practice of continuance provisions in collective bargaining agreements.  These provisions ensure that a contract remains in force even after expiration when negotiations are underway.  The Republican members of the FLRA ruled that before an expiring union contract can remain in force while parties negotiate a new contract, it must be subject to agency head review.

Connolly’s letter points out that the FLRA violated its own rules in issuing these three decisions.  “In publishing this trio of decisions, the two-member Republican majority violated the FLRA’s own rules.  Advisory opinions are legal opinions that do not arise out of an actual dispute between two real parties,” Connolly concluded. The three cases all arose from requests by agency management for guidance.

The full letter follows and is available here.

The Honorable Colleen Duffy Kiko                    

Chairman                    

Federal Labor Relations Authority        

1400 K Street, N.W.

Washington, D.C. 20424

Dear Chairman Kiko:

I write to strongly object to three radical policy decisions released by the Federal Labor Relations Authority (FLRA) on September 30, 2020.  The Republican two-member majority discarded decades of labor-management relations precedent and violated their own rules to achieve the goal of limiting collective bargaining for the almost 1.2 million federal employees represented by federal employee unions.

Bargaining Over Management-Directed Policy Changes

The first decision came at the request of the U.S. Department of Agriculture (USDA) and the U.S. Department of Education for a general statement of policy or guidance on the duty to bargain over management-initiated policy changes.  The two-member Republican majority abandoned the FLRA's longstanding precedent that the duty to bargain is triggered for any non “de minimis” change.  The FLRA will now require bargaining only if the agency proposal is a “clear and meaningful” substantial change.  

This decision flies in the face of prior FLRA precedent, including decisions affirmed by federal appellate courts, and congressional intent of labor-management relations law regarding federal employees’ rights to collective bargaining.  What is even more concerning is that the FLRA afforded itself no opportunity to hear from labor organizations before issuing this one-sided decision.  Agencies can now reject a union’s request to bargain over a new policy based on the agency’s interpretation that their policy change will not have a “clear and meaningful” impact on employee working conditions.  This decision creates an unduly high standard for triggering the duty to bargain and conflicts with congressional intent. 

Engaging in Mid-Term Bargaining

The second extremist FLRA decision came at the request of the Office of Personnel Management to clarify that zipper clauses, which limit negotiations during the term of a union contract,  are mandatory subjects of bargaining.  The FLRA Republican majority granted that request and then went much further, finding that federal labor law “neither requires nor prohibits midterm bargaining,” leaving “midterm bargaining obligations to the parties to resolve as part of term negotiations.”  

The decision contradicts previous precedent, which held for decades that “midterm bargaining over matters not contained in or covered by the term agreement” was within the duty to bargain and consistent with the Federal Service Labor-Management Relations Statute.  The previous precedent set in 2000 asserted that midterm bargaining was in the public interest because it contributes to stable labor management relations and effective government.  It also suggested that midterm bargaining contributes to a more efficient government by providing a vehicle for focused negotiations in the initial term agreement.    

 The FLRA’s current Republican majority discarded a decades-old precedent with no clear demonstration that reversing it was necessary or consistent with congressional intent.  The effect of the new policy denies both unions and management the obligation to initiate midterm bargaining unless they have negotiated for and secured that right in their contracts.  This is a radical change that makes the government less effective and efficient, not more.  It is in the public interest for management and unions to negotiate responses to evolving situations that may arise at any time, as the current pandemic clearly demonstrates.  If nothing else, the volatility of 2020 should have reinforced the necessity for midterm bargaining in the face of rapidly changing, life-altering conditions that directly affect labor-management relations.  Yet, the FLRA’s new policy to limit negotiation opportunities directly conflicts with Congress’ position that collective bargaining is in the public interest.    

Expiring Collective-Bargaining Agreements 

The third decision came at the request of USDA’s Office of General Counsel about the longstanding practice of continuance provisions in collective bargaining agreements.  These provisions ensure that a contract remains in force even after expiration when negotiations are underway.  The Republican members of the FLRA ruled that before an expiring union contract can remain in force while parties negotiate a new contract, it must be subject to agency head review. 

Like the other decisions, this one was made in a vacuum, without the benefit of a real-world contract issue.  As defined by statute, the agency head is required to approve a collective bargaining agreement “within 30 days from the date the agreement is executed.”  Previously, the FLRA established that an agreement’s execution date was “the date on which no further action is necessary to finalize a complete agreement.”   The FLRA’s new decision, however, disregards this reasoned, long-held understanding and instead redefines what constitutes execution.  Now, exercising an existing agreement’s continuance provision is tantamount to execution of a new agreement.  This decision contradicts common sense and prior precedent, which held that execution of a continuance is not a new agreement, and that an existing agreement should “remain in full force and effect” until a new agreement is negotiated and approved.

The FLRA’s confusing and contradictory decision “unnecessarily introduces conflict and uncertainty into the collective barraging negotiations” and has opened the door to additional questions and conflicts when agencies and unions try to apply this new rule to actual continuance provisions. [1]   This regrettable outcome is contrary to the purpose of the Federal Service Labor-Management Relations Statute, which states that “the provisions of this chapter should be interpreted in a manner consistent with the requirement of an effective and efficient Government.”

The Authority Violated Its Own Rules in Issuing These Radical Decisions

In publishing this trio of decisions, the two-member Republican majority violated the FLRA’s own rules.  Advisory opinions are legal opinions that do not arise out of an actual dispute between two real parties.  Under its own regulations, the FLRA “will not issue advisory opinions.”  None of these cases arose out of a dispute; all arose from requests by agency management for guidance.  

The FLRA’s rule derives from its longstanding practice to follow the customs and practices of the federal judiciary.  Federal courts may not issue advisory opinions.  The Constitution’s justiciability definition, set forth in Article III, Section 2, Clause 1, limits the exercise of judicial authority to matters that involve an actual “case or controversy.”

The three decisions referenced above are radical in both substance and form.  They are radical in substance because they overturn longstanding precedent, undermine both present and future collective bargaining agreements and upset the balance of rights and responsibilities that have long characterized federal labor-management relations.  They are radical in form because the Republican majority went to the extreme lengths of violating the FLRA’s own prohibition and the Constitution’s prohibition on the judiciary against issuing advisory opinions.

For those reasons, these recent decisions issued by a two-to-one Republican majority at the close of the Trump administration should be reconsidered in the future and overturned to reinstate precedents and customary practices that have governed these issues for decades.

The Committee on Oversight and Reform is the principal oversight committee of the House of Representatives and has broad authority to investigate “any matter” at “any time” under House Rule X.  If you have any questions, please contact Subcommittee staff at (202) 225-5051.

Sincerely,