Zipper Clauses and Federal Employee Unions

October 13, 2020 7:07 AM
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In April, FedSmith notified readers that the Federal Labor Relations Authority (FLRA) was seeking comments on a request from the Office of Personnel Management (OPM) for the FLRA to issue a statement that zipper clauses are a required topic of bargaining between federal agencies and federal employee unions.

OPM noted in its submission to the FLRA that unless a zipper clause is a required (mandatory) subject of bargaining, an agency cannot take the issue to the Federal Services Impasses Panel (FSIP). This means agencies are effectively precluded from including these clauses in a labor agreement.

Federal agencies would usually like to have a “zipper clause” in a contract with a federal employee union as it means less time and effort is spent on negotiating, often for a considerable time, on issues arising during the term of a labor contract.

Unions do not like a zipper clause. It reduces the obligation of an agency to bargain with a union during the life of a contract.

In short, unions want the freedom to bargain as often as they want and agencies want to limit the amount of time and the topics on which they are required to bargain.

What is a Zipper Clause?

A zipper clause is a provision in a labor contract between an agency and a union under which both parties waive the right to demand bargaining on any matter not covered by the contract. The restriction on future bargaining is usually in effect whether the other subject was contemplated when the contract was negotiated or signed.

Role of the FLRA

The FLRA administers the federal labor relations statute for the federal government. Its duties include making decisions on questions that come before the agency on a wide variety of federal labor relations issues.

In this role, the FLRA has now issued a decision on whether zipper clauses are a topic that must be open to negotiation. As a practical matter, this means that when an agency proposes a zipper clause, a federal employee union has an obligation to bargain on the subject.

It does not mean that the union has to agree to a zipper clause and it is unlikely that a union would agree to include a zipper clause in a new contract. But, by making the subject a mandatory topic of bargaining, an agency could force the issue to come before the Federal Service Impasses Panel (FSIP). In that instance, the FSIP could direct that a zipper clause must be included in a labor agreement.

The FLRA’s Decision

In decision 71 FLRA No. 91, Office of Personnel Management Request for General Statement of Policy or Guidance, the FLRA concluded:

[W]e clarify that the Statute neither requires nor prohibits midterm bargaining, and that all proposals concerning midterm‑bargaining obligations (including zipper clauses) are mandatory subjects for negotiation that may be bargained to impasse.

The FLRA decided to address this issue as it had not been addressed previously. According to the FLRA:

We find that by resolving the Petitioner’s (OPM) question concerning zipper clauses—a question that has persisted for decades without a clear answer—we will provide guidance with “general applicability” under the Statute on a matter that currently confronts parties in the context of a labor‑management relationship. Therefore, we grant the Petitioner’s request for a general statement.

In effect, the FLRA has concluded proposals on midterm‑bargaining obligations—whether they resemble re-opener or zipper clauses—are mandatory subjects of bargaining under the federal labor relations statute. Moreover, negotiations on these topics can be taken to impasse to go before the Federal Service Impasses Panel.

This does not mean the FSIP would require that a zipper clause be included in a labor agreement. If an agency can demonstrate it is spending an exorbitant amount of time and money on bargaining during the life of a labor agreement, the FSIP may direct that a zipper clause be included in the labor contract.

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

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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

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