D.C. Circuit Court of Appeals overturns two FLRA rulings

Two three-judge panels of the U.S. Court of Appeals for the District of Columbia Circuit recently issued rulings affecting federal employee collective bargaining.

Jan. 28 ruling on midterm bargaining

On Jan. 28, a three-judge panel of the D.C. Circuit Court of Appeals overturned the Federal Labor Relations Authority’s (FLRA) 2020 decision that federal employers were not obligated by federal labor law to bargain during the term of a collective bargaining contract. The FLRA is the federal agency that administers federal labor relations.

According to Reuters’ Daniel Wiessner, the D.C. Circuit’s ruling means that “Federal-sector unions … have the right to demand that agencies bargain with them in the middle of a contract term.”

The FLRA decision said that “all proposals concerning midterm‑bargaining obligations (including zipper clauses) are mandatory subjects for negotiation that may be bargained to impasse.” A zipper clause limits negotiations during the term of a bargaining agreement. The FLRA’s two Republican members wrote the decision, and the Democratic chairman dissented.

According to Government Executive’s Erich Wagner, the decision went against precedent and “hampered federal employee unions’ ability to negotiate over issues that come up over the course of a collective bargaining agreement.”

The American Federation of Government Employees (AFGE) filed a petition challenging the FLRA decision on Sept. 30, 2020. The AFGE lawsuit was consolidated with petitions that the National Treasury Employees Union and American Federation of State, County and Municipal Employees filed in October.

On Jan. 28, Chief Judge Sri Srinivasan and Circuit Judges Patricia Millett and Cornelia Pillard overturned the FLRA’s decision. Writing for the court, Pillard said: “We begin where the Authority did, with its holding that the Statute does not require midterm bargaining. We vacate that holding as arbitrary and capricious. We then consider the Agency’s ultimate holding that zipper clauses are mandatory bargaining subjects. Because the Authority treated its first, invalid holding as the ‘necessary’ predicate to its second, we must vacate the latter as well.” President Barack Obama (D) nominated all three judges to the court.

The case name and number are American Federation of Government Employees v. FLRA (20-1398).

Feb. 1 ruling on duty to bargain

D.C. Circuit Judge Ketanji Brown Jackson, a potential nominee to replace retiring Justice Stephen Breyer on the U.S. Supreme Court, issued her first opinion since being confirmed to the D.C. Circuit in June 2021.

In this case, the same three unions noted above sued the FLRA over its decision on “the standard…for deciding whether a management-initiated change triggers an agency’s duty to bargain under the Federal Service Labor-Management Relations Statute.” The petitions were again consolidated.

According to Wagner, the FLRA decision “[raised] the threshold of a change in working conditions that [would require] agency management to negotiate with its unions,” going from a “greater than de minimis” standard to a “substantial impact” standard. Once again, the decision was along party lines.

On Feb. 1, another three-judge panel—Circuit Judges David Tatel, Jackson, and Pillard—overturned the FLRA decision. Jackson wrote: “The cursory policy statement that the FLRA issued to justify its choice to abandon thirty-five years of precedent promoting and applying the de minimis standard and to adopt the previously rejected substantial-impact test is arbitrary and capricious for the reasons explained above. Consequently, the unions’ petitions for review are granted and the FLRA’s September 30, 2020 general statement of policy is vacated.” President Bill Clinton (D) nominated Tatel to the court, and President Joe Biden (D) nominated Jackson.

The case name and number are American Federation of Government Employees v. FLRA (20-1396).

Additional context

The three-member FLRA administers the Federal Service Labor-Management Relations Statute, which permits certain federal government employees to unionize and bargain collectively. The FLRA website outlines its responsibilities as follows:

Resolving complaints of unfair labor practices.
Determining the appropriateness of units for labor organization representation.
Adjudicating exceptions to arbitrators’ awards.
Adjudicating legal issues relating to the duty to bargain.
Resolving impasses during negotiations.

The president nominates FLRA members to serve five-year terms, unless they are filling the remainer of an unexpired term. Nominees must be confirmed by the Senate. FLRA members can continue to serve after their terms expire until either a successor is appointed or until the end of the next congressional session. No more than two of the three members may belong to the same political party.

The current members of the FLRA are:

Chairman Ernest DuBester (D): Obama first nominated DuBester to the agency in 2009. Obama re-nominated DuBester in 2013, and President Donald Trump (R) nominated him to a third term in 2017. In January 2021, Biden designated DuBester as FLRA chairman, a position he also held in 2013 and 2017. In July 2021, Biden re-nominated DuBester for a term that would end in 2024. This nomination has not been confirmed.
James T. Abbott (R): Trump nominated Abbot in 2017. His term expired in July 2020. In August 2021, Biden nominated Susan Tsui Grundmann (D) to replace Abbott. This nomination has not been confirmed.
Colleen Duffy Kiko (R): Trump nominated Kiko to the FLRA in 2017. Kiko’s term expires in July 2022.

The U.S. Court of Appeals for the District of Columbia Circuit hears appeals from the U.S. District Court for the District of Columbia. There are 11 active judges on the D.C. Circuit. Of those judges, President George H.W. Bush (R) nominated one, Clinton nominated two, Obama nominated four, Trump nominated three, and Biden nominated one.

What we’re reading

The big picture

Number of relevant bills by state

We are currently tracking 91 pieces of legislation dealing with public-sector employee union policy. On the map below, a darker shade of green indicates a greater number of relevant bills. Click here for a complete list of all the bills we’re tracking.

Number of relevant bills by current legislative status

Number of relevant bills by partisan status of sponsor(s)

Recent legislative actions

Below is a complete list of relevant legislative actions taken since our last issue.

Arizona SB1553: This bill would enact the Public Employee Bargaining Act, an omnibus public-sector labor bill.
- Democratic sponsorship.
- Senate read second time Feb. 1.
California AB314: This bill would grant employees of the state legislature the right to form, join, and participate in unions.
- Democratic sponsorship.
- Died Feb. 1.
California AB1484: This bill would prohibit a public school employer from deducting the amount of a fair share service fee or alternative fee from a public school employee’s pay without the employee’s written permission. The authorization would only be valid for the calendar year in which it was given, unless terminated.
- Republican sponsorship.
- Died Jan. 31.
California AB1714: This bill would allow unions representing excluded state employees to request arbitration with the Department of Human Resources in certain circumstances.
- Democratic sponsorship.
- Referred to Assembly Public Employment and Retirement Committee and Assembly Judiciary Committee on Feb. 3.
Colorado SB109: This bill would prohibit public employees and unions from carrying out certain actions including strikes and work slowdowns. It would give public employers permission to seek a court injunction against such actions.
- Republican sponsorship.
- Introduced, referred to Senate State, Veterans, & Military Affairs Committee on Feb. 1.
Indiana SB0297: This bill would amend the language of the authorization form school employees must sign before union dues may be deducted from their pay.
- Republican sponsorship.
- Passed Senate 37-12 on Feb. 1, referred to House on Feb. 2.
Maryland HB504: This bill would authorize school employees to strike.
- Democratic sponsorship.
- House Ways and Means Committee hearing scheduled for Feb. 17.
Minnesota HF2729: This bill would give legislative employees the right to elect exclusive representatives for collective bargaining.
- Democratic sponsorship.
- Introduced, read first time, and referred to the House Labor, Industry, Veterans and Military Affairs Finance and Policy Committee Jan. 31.
New Hampshire HB1472: This bill would prohibit employers from taking certain actions against employees involved in legal strikes or collective bargaining preceding a legal strike. It would also prohibit employers from “[engaging] in anti-union training of any kind.”
- Democratic sponsorship.
- Public hearing in the House Labor, Industrial and Rehabilitative Services Committee held Feb. 3.
Rhode Island H7198: This bill would establish a method of dispute arbitration for municipal employees, who are not allowed to strike.
- Democratic sponsorship.
- House Labor Committee hearing held Feb. 2, committee recommended further study.
Virginia HB336: This bill would require a 51% vote by public employees in a collective bargaining unit to certify a bargaining representative in localities that have authorized collective bargaining.
- Republican sponsorship.
- Subcommittee #1 hearing held Feb. 1.
Virginia HB337: This bill would prohibit collective bargaining agreements from having a public employer provide compensation or compensated leave time for union activities. It would require unions to compensate public employers if union activities infringe upon their time or resources.
- Republican sponsorship.
- Subcommittee #1 hearing held Feb. 1.
Virginia HB341: This bill would give public employees the right to resign from a union and stop paying dues at any time. It would require public employees to give written consent before employers may deduct union dues from their pay, and it would prescribe the wording of the authorization form. The bill would require annual reconfirmation of consent for union membership and dues deductions.The bill would also require employers to annually notify employees they have the right to resign from a union and provide an average of the dues they would pay.
- Republican sponsorship.
- Subcommittee #1 hearing held Feb. 1.
Virginia HB790: This bill would prevent localities from entering collective bargaining agreements with law enforcement employee associations if the agreements do not meet certain criteria.
- Republican sponsorship.
- Subcommittee #1 hearing held Feb. 1.
Virginia HB883: This bill would repeal provisions allowing local governments to bargain collectively with their employees upon adopting an authorizing ordinance or resolution.
- Republican sponsorship.
- Subcommittee #1 hearing held Feb. 1.
Virginia SB374: This bill would repeal provisions allowing local governments to bargain collectively with their employees upon adopting an authorizing ordinance or resolution.
- Republican sponsorship.
- Passed by indefinitely in Senate Commerce and Labor Committee on Jan. 31.
Virginia SB721: This bill would give public employees the right to resign from a union and stop paying dues at any time. It would require public employees to give written consent before employers may deduct union dues from their pay, and it would prescribe the wording of the authorization form. The bill would require annual reconfirmation of consent for union membership and dues deductions.The bill would also require employers to annually notify employees they have the right to resign from a union and provide an average of the dues they would pay.
- Republican sponsorship.
- Passed by indefinitely in Senate Commerce and Labor Committee on Jan. 31.
Washington HB1764: This bill would stipulate new requirements for collective bargaining negotiations and arbitration between the University of Washington School of Medicine and residents and fellows who have the right to bargain collectively.
- Democratic sponsorship.
- House Appropriations Committee hearing held Feb. 3.
Washington HB1806: This bill would give state legislative branch employees the right to bargain collectively.
- Democratic sponsorship.
- House Appropriations Committee hearing Feb. 4.