Who Does a Union Represent?
Labor relations in the federal government is a topic about which many federal employees have little or no information. We occasionally see comments from readers to the effect that they do not belong to a union and are not represented by a union.
That may be the case, but often a person is represented by a union even if the employee does not know it.
A federal employee is often in a defined bargaining unit that is represented by a union. The employee may choose to pay dues or may choose not to pay dues. Mandatory dues or fees for federal employees are not allowed by the federal labor relations statute.
If a person does not know they are in a bargaining unit, it does not make any difference. The union is considered their representative in dealing with their employing agency and the agency is obligated to recognize that obligation—whether the employee agrees or not.
The contract a union negotiates on behalf of employees in the bargaining unit applies to all employees. The rights and obligations in that contract have to be followed by the agency, the union, and those employees in the unit.
Occasionally, we receive a question at FedSmith from an employee who does not like a clause or condition of employment discussed in the labor agreement. If that happens, the employee usually does not like the clause or the obligation. Our advice is to discuss it with their union representative to try and get it changed, if the union is willing to do so, in the next round of negotiations.
What is a Zipper Clause and Why is it Important?
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 or not the other subject was contemplated when the contract was negotiated or signed.
A zipper clause limits future bargaining obligations. Generally, an agency wants to save the time, expense, and hassle of having to engage in more negotiations with a union. A zipper clause is a way to minimize or eliminate additional bargaining.
Because of this, unions generally do not want to agree to a zipper clause. Unions want to be able to bargain more in the future after the labor contract has been signed and approved. New topics may arise during the life of an agreement or changes may occur regarding conditions already addressed in an agreement and not having a zipper clause gives a union that opportuity.
Further negotiations give the union a reason for existence and keeps the union’s name and function in front of bargaining unit members—all of whom are potential dues-paying members.
In April, 2020, 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 could take the issue to the Federal Services Impasses Panel (FSIP). This would mean agencies are effectively precluded from including these clauses in a labor agreement. And, as noted above, agencies would often like to have such a clause.
FLRA Statement of Policy on a Zipper Clause
In a decision issued on September 30, 2020, the Federal Labor Relations Authority (FLRA) writes in a policy statement:
[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.
Court of Appeals Overturns Policy Statement on Zipper Clause Bargaining
Several unions appealed this decision. On January 28, 2022, the Court of Appeals for the District of Columbia Circuit issued its decision on the appeal of the FLRA’s policy statement. As is usually the case, the Court addressed a variety of arguments and discussed these arguments in its decision.
Labor relations practitioners and labor law lawyers will want to read the entire decision for a full discussion. For the majority of readers not wanting to delve that deeply into the topic, here is a very quick summary.
The Court of Appeals concluded:
The Authority failed to offer a reasoned explanation for its decision that the Statute does not require midterm bargaining. The Policy Statement simply deemed it “more appropriate” to read the Statute to not require midterm bargaining. Policy Statement, 71 F.L.R.A. at 979, But it offered no non-arbitrary reason why.
Impact of Court Decision on Federal Labor Relations
The policy statement from the FLRA meant that unions were required to bargain on including a zipper clause in the federal labor agreement if an agency wanted one to be included. If the union did not agree, the agency could take action to force the union to do so and it would not be taken to the Federal Service Impasses Panel for a resolution.
In effect, the Court overturning the policy decision of the FLRA removes a zipper clause from being a “mandatory” topic of bargaining to a “permissive” topic. In other words, a union can bargain on a zipper clause if it chooses to do so but it does not have to do so.
The practical impact of the new decision is that federal labor unions will not want to bargain on including a zipper clause as it is contrary to their self-interest and they cannot be forced to do so.