[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]


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 Proposed Rules
                                                 Federal Register
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 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.
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  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.

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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