[Federal Register Volume 85, Number 62 (Tuesday, March 31, 2020)]
[Proposed Rules]
[Pages 17767-17768]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-06456]
========================================================================
Proposed Rules
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains notices to the public of
the proposed issuance of rules and regulations. The purpose of these
notices is to give interested persons an opportunity to participate in
the rule making prior to the adoption of the final rules.
========================================================================
Federal Register / Vol. 85, No. 62 / Tuesday, March 31, 2020 /
Proposed Rules
[[Page 17767]]
FEDERAL LABOR RELATIONS AUTHORITY
5 CFR Part 2427
[FLRA Docket No. 0-PS-38]
Notice of Opportunity To Comment on a Request for a General
Statement of Policy or Guidance on Whether ``Zipper Clauses'' Are
Mandatory Subjects of Bargaining
AGENCY: Federal Labor Relations Authority.
ACTION: Proposed issuance of a general statement of policy or guidance.
-----------------------------------------------------------------------
SUMMARY: The Federal Labor Relations Authority (Authority) solicits
written comments on a request from the U.S. Office of Personnel
Management (OPM) for a general statement of policy or guidance (general
statement) holding that ``zipper clauses''--which are provisions that
would foreclose or limit mid-term bargaining during the term of a
collective-bargaining agreement (CBA)--are a mandatory subject of
bargaining. Comments are solicited on whether the Authority should
issue a general statement, and, if so, what the Authority's policy or
guidance should be.
DATES: To be considered, comments must be received on or before April
30, 2020.
ADDRESSES: You may send comments, which must include the caption ``OPM
(Petitioner), Case No. 0-PS-38,'' by one of the following methods:
Email: [email protected]. Include ``OPM
(Petitioner), Case No. 0-PS-38'' in the subject line of the message.
Mail or Express Mail: Emily Sloop, Chief, Case Intake and
Publication, Federal Labor Relations Authority, Docket Room, Suite 200,
1400 K Street NW, Washington, DC 20424-0001.
Instructions: Do not mail or express mail written comments if they
have been submitted via email. Interested persons who mail or express
mail written comments must submit an original and 4 copies of each
written comment, with any enclosures, on 8\1/2\ x 11 inch paper. Do not
deliver your comments by hand, Federal Express, or courier.
FOR FURTHER INFORMATION CONTACT: Emily Sloop, Chief, Case Intake and
Publication, Federal Labor Relations Authority, (202) 218-7740.
SUPPLEMENTARY INFORMATION: In Case No. 0-PS-38, OPM requests that the
Authority issue a general statement concerning zipper clause provisions
and whether such provisions are mandatory subjects of bargaining.
Interested persons are invited to express their views in writing as to
whether the Authority should issue a general statement and, if it does,
what the Authority's policy or guidance should be.
Proposed Guidance
To Heads of Agencies, Presidents of Labor Organizations, and Other
Interested Persons:
OPM has requested, under Section 2427.2(a) of the Authority's rules
and regulations (5 CFR 2427.2(a)), that the Authority issue a general
statement of policy or guidance addressing the negotiability of zipper
clause provisions and whether such provisions are mandatory subjects of
bargaining. OPM asserts that the Authority's precedent supports
considering zipper clauses to be mandatory subjects of bargaining
because such proposals clearly involve the parties' mid-term bargaining
rights and obligations, which have been found to be mandatory subjects
of bargaining. The Authority has held that mandatory subjects of
bargaining are topics that are within the required scope of bargaining.
FDIC, Headquarters, 18 FLRA 768, 771 (1985). Furthermore, any party may
bargain to impasse over mandatory topics. Id.
Previously, judges of the D.C. Circuit have written separately to
recognize the validity of zipper clauses. FLRA v. IRS, Dep't of the
Treasury, 838 F.2d 567, 569-70 (D.C. Cir. 1988) (Edwards, J. and
Silberman, J., concurring in denial of reh'g) (IRS II). They noted that
the Authority's precedent established that ``a union may contractually
agree to waive its right to initiate bargaining in general by a `zipper
clause,' '' id. at 570 (quoting IRS, 29 FLRA 162, 166 (1987)), and
rejected an argument that the Authority's precedent established that
zipper clauses are a permissive subject of bargaining. Id. In NTEU v.
FLRA, the court found that ``all conditions of employment are presumed
to be mandatory subjects of bargaining . . . unless the Act explicitly
or by unambiguous implication vests in a party an unqualified right.''
399 F.3d 334, 340 (D.C. Cir. 2005) (internal quotation marks omitted).
Citing IRS, the court stated:
[w]hile two members of this court have expressed their opinion that
bargaining over a zipper clause may be mandatory, neither the FLRA
nor our court has squarely addressed this issue. See FLRA v.
Internal Revenue Serv., 838 F.2d 567 (D.C. Cir.1988)(Edwards, J. and
Silberman, J., concurring in denial of reh'g)(disputing that FLRA
precedent established zipper clause as permissive subject of
bargaining); See also Interior, 56 F.L.R.A. at 54 (declining to
address negotiability of zipper clause).
Id. at 343.
On remand, in NTEU, 64 FLRA 156, 157-59 (2009), the Authority found
that ``reopener clauses''--which are provisions that specify the
conditions where a party may seek to negotiate over a term that is
``covered by'' a CBA--are a mandatory subject of bargaining because
they relate to conditions of employment and seek to define the parties'
mid-term bargaining rights and obligations.
Because the Authority has only recognized reopener clauses as
mandatory subjects of bargaining, OPM contends that it is prevented
from utilizing the Federal Service Impasses Panel (the Panel) when a
union elects to not agree to zipper clauses during term negotiations
for a new CBA. As support, OPM cites to U.S. Department of HHS and
NTEU, 18 FSIP 077 (2019). In that case, the Panel declined to exercise
jurisdiction over a zipper clause because the Union ``raised colorable
questions'' regarding whether such clauses concern a permissive topic
of bargaining.
OPM contends that the Authority's precedent regarding zipper and
reopener clauses have created an inequality where only reopener clauses
can be bargained to impasse. Therefore, parties seeking to include a
zipper clause are disadvantaged during term bargaining and the Panel is
precluded from considering the totality of the circumstances when
deciding to limit or broaden mid-term bargaining. Therefore, OPM
concludes that parties should be able to bargain zipper clauses to
[[Page 17768]]
impasse. Furthermore, OPM argues that finding zipper clauses to be
mandatory will avoid disputes during mid-term bargaining and reduce the
number of unfair-labor-practice charges regarding actions taken
pursuant to such clauses.
In its request, OPM asks the Authority to issue a general statement
holding that:
1. Zipper clauses are a mandatory topic of bargaining and,
therefore, parties may bargain to impasse regarding both reopener and
zipper clauses.
Regarding the matters raised by OPM, the Authority invites written
comments on whether issuance of a general statement of policy or
guidance is warranted, under the standards set forth in Section 2427.5
of the Authority's rules and regulations (5 CFR 2427.5), and, if so,
what the Authority's policy or guidance should be. Written comments
must contain separate, numbered headings for each issue covered.
Dated: March 24, 2020.
Rebecca J. Osborne,
Federal Register Liaison and Deputy Solicitor.
[FR Doc. 2020-06456 Filed 3-30-20; 8:45 am]
BILLING CODE 6727-01-P