Zipper Clauses, Unions and Lawsuits

April 6, 2020 11:48 AM
View this article online at https://www.fedsmith.com/2020/04/06/zipper-clauses-unions-lawsuits/ and visit FedSmith.com to sign up for free news updates
Judge's gavel on a wooden surface with a stack of law books seen blurred in the background behind it

iStock.com

The Federal Labor Relations Authority (FLRA or Authority) is asking for written comments on a request from the Office of Personnel Management (OPM) for a policy statement concerning “zipper clauses”.

What Is a Zipper Clause?

For those who do not follow the minutiae of federal labor relations (which probably includes most FedSmith readers), a zipper clause sounds like a phrase from a racy novel.

Alas, that is not the case. A “zipper clause” is a section of a labor agreement that does not allow or limits bargaining while a labor agreement is already in effect. Generally, federal employee unions want complete freedom to bargain as often as they wish to do so and agencies want to limit the amount of time and the topics on which they are required to bargain with a union.

Request for Comments

OPM is asking the FLRA to issue a statement that zipper clauses are a required topic of bargaining between federal agencies and federal employee unions.

If the FLRA concludes that it is a required bargaining topic, it means that when an agency and union do not agree on including a zipper clause in a labor contract it could (and probably would) result in an impasse that would go to the Federal Service Impasses Panel (FSIP or the Panel) for a resolution.

OPM notes in its submission to the FLRA that unless a zipper clause is a required subject of bargaining, an agency cannot take the issue to the FSIP, so agencies are, in effect, precluded from including these clauses in a labor agreement.

Submitting Comments to the FLRA

Comments should address the following questions as outlined in the Federal Register notice

1. Whether issuance of a general statement of policy or guidance is warranted and, if so,

2. If so, what the Authority’s policy or guidance should be? 

The deadline for comments is April 30, 2020.

Comments to the FLRA 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.

AFGE Sues FSIP and FLRA

In a related matter, the AFGE National Veterans Affairs Council has filed a lawsuit against the FLRA, FSIP and the Chairman of the FSIP contending that a party using the services of the FSIP is “entitled to an impartial, unbiased adjudicator. Regrettably, the Federal Service Impasses Panel…as currently constituted, fails to adhere to this important principle.”

The lawsuit is related to recent FLRA and FSIP actions and decisions to the extent that federal employee unions are not happy with recent decisions or actions of these third party tribunals.

Unions have also gone to court to seek a court declaration that the executive orders must be rescinded for various reasons as these orders are detrimental to the federal employee unions. At the time of this writing, the efforts to have the executive orders rescinded have not been successful.

Union Argues Panel Members Should be Confirmed by the Senate

The lawsuit contends “Panel members are principal officers of the United States appointed for five-year terms by the President, but the current members’ appointments have not been confirmed by the Senate as required by the U.S. Constitution.”

The federal government’s labor relations statute reads: “The Panel shall be composed of a Chairman and at least six other members, who shall be appointed by the President, solely on the basis of fitness to perform the duties and functions involved, from among individuals who are familiar with Government operations and knowledgeable in labor-management relations.”

The labor relations statute became effective in 1978. It does not contain a requirement that Panel members be confirmed by the Senate or “be members of any of the major alternative dispute resolution organizations.”

The irony behind the lawsuit is that the labor relations statute was passed when the National President of AFGE at the time, Kenneth Blaylock, traveled around the country with President Jimmy Carter urging passage of the statute. The union’s contention was that an executive order ordering the establishment of a federal labor relations program was insufficient and that unions needed the added authority of a statute to be effective. Having the President of the United States campaigning for a labor relations statute with full support of the largest federal employee union was very effective and the effort was successful with the passage of the Civil Service Reform Act.

“If we did not have the labor relations program in the federal sector locked into law, under this administration we’d be totally out of business,” Blaylock told the Washington Post in 1986. 

There is no indication the union saw the lack of Senate confirmation as a problem when hitting the public relations circuit seeking passage of the law or at any time prior to President Trump’s election. The lawsuit cites a 1976 case contending that Panel members must have Senate confirmation.

Since the labor relations statute was passed, no Panel members have been confirmed by the Senate. In accordance with the labor relations statute, the President of the United States has appointed the members and they have assumed the office without Senate confirmation.

The union’s lawsuit contends that “None of the current members are certified neutrals” and that “This action also challenges the failure of the Panel to provide neutral arbiters who meet the ‘fitness’ requirements of the governing statute and the failure to provide an unbiased tribunal as required by the Due Process Clause of the Constitution.”

In effect, the union now believes that the labor relations statute is insufficient in that it does not require Senate confirmation of Panel members and that “politicizing the Panel is precisely what the present Administration has done” which will lead to the “detriment of labor-management relations in the federal government.”

There is no doubt political debate in our country has become louder and more divisive. Federal employee unions have been very active in political issues and generally act in support of Democrats during elections. As a result, it is not surprising that the political debate has crept into the federal labor relations process and its institutions.

What Happens Next?

The lawsuit against the FSIP and the FLRA appears to be a tough fight for the unions to win through the appeals likely to be filed after the initial decision is issued. The goal of the unions may be to delay or derail decisions of the FLRA and FSIP until after the elections in November.

It is unlikely all aspects of the case will be resolved prior to November and that may help the unions’ cause. Of course, if President Trump wins another term and Republicans keep control of at least one chamber in Congress, the road ahead could be even more difficult.

No doubt, there will be interesting decisions forthcoming and that may have a long-term impact on the structure of the federal labor relations program and the role of federal employee unions. We look forward to keeping readers informed of the latest developments as they transpire.

AFGE Complaint Against FLRA,FSIP

© 2020 Ralph R. Smith. All rights reserved. This article may not be reproduced without express written consent from Ralph R. Smith.

Tags:

About the Author

Ralph Smith has several decades of experience working with federal human resources issues. He has written extensively on a full range of human resources topics in books and newsletters and is a co-founder of two companies and several newsletters on federal human resources. Follow Ralph on Twitter: @RalphSmith47

Top