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NEWS AND CASE ALERT
October 7th, 2020 | Issue #12-07
TABLE OF CONTENTS
FLRA SHIFTS STANDARD FOR IMPACT AND TERM BARGAINING
FLRA POLICY GUIDANCE ESTABLISHES THAT GOVERNMENT-WIDE REGULATIONS ISSUED DURING THE TERM OF A CONTRACT WILL TAKE PRECEDENCE OVER THE CONTRACT AT THE END OF THE CONTRACT TERM, EVEN IF THE CONTRACT IS CONTINUED IN EFFECT BY OPERATION OF LAW OR AGREEMENT PENDING RENEGOTIATION
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FLRA SHIFTS STANDARD FOR IMPACT AND TERM BARGAINING
Here’s the deal. For years FLRA set the standard for impact bargaining as a mid-term change that’s more than de minimis. Definition of de minimis is subjective, so FLRA decisions over the years go this way and that but generally favor bargaining—as one would expect from a low threshold bargaining standard. Along comes a decision on a request for a general statement of policy or guidance sought by the Departments of Agriculture and Education. That decision announces the bargaining threshold for mid-term changes (impact and implementation) is now (and until modified) a change to a condition of employment with a substantial impact on that employment condition. In a footnote, FLRA added that the same standard would be applied to matters claimed to be substantively negotiable, that is, when the change does not involve the exercise of a management right. The Authority decided to forego public comment on the request for policy or guidance, citing confusion in the law, the need for speedy relief, and the ability of FLRA to research its own precedent. Member DuBester dissented, relying on court cases and FLRA precedent. Although negotiability decisions are judicially reviewable under the CSRA, not so clear is the reviewability of a decision on a request for a statement of policy and guidance. Once the standard just announced is incorporated into negotiability or ULP decisions, judicial review is then likely at the behest of labor unions.

Dept. of Education and Dept. of Agriculture, 0-PS-44, 71 FLRA 968 (Sept. 30, 2020)

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FLRA POLICY GUIDANCE ESTABLISHES THAT GOVERNMENT-WIDE REGULATIONS ISSUED DURING THE TERM OF A CONTRACT WILL TAKE PRECEDENCE OVER THE CONTRACT AT THE END OF THE CONTRACT TERM, EVEN IF THE CONTRACT IS CONTINUED IN EFFECT BY OPERATION OF LAW OR AGREEMENT PENDING RENEGOTIATION
During the term of a contract, the contract terms override intervening government-wide rules or regulations (unless, pursuant to 5 USC 7116, they implement provisions of 5 USC 2302 prohibiting defined personnel practices [e.g., discrimination or whistleblowing reprisal]). The precedent of FLRA is that when a contract expires, its terms ordinarily continue pending renegotiation. Some contracts call for indefinite continuation or rollover following expiration and pending further negotiations. When can the agency (through agency head review or otherwise) stop continuation of contract terms that block government-wide rules or regulations if contract terms continue pending renegotiation or if the contracts indefinitely extend themselves?

The Department of Agriculture sought a general statement of policy or guidance and received it on September 30, 2020, following receipt by FLRA of public comment. Noting the recent proliferation of government wide regulations, rules, or executive orders affecting administration of personnel or labor relations, FLRA decided—as best we understand the decision—that when an agreement expires or is indefinitely continued or rolled over pending further negotiation, existing, applicable government-wide regulations govern the parties conduct immediately—without agency head review or further negotiations. Member DuBester dissented, arguing that a contract’s term and its continuation are by agreement of the parties, and that the law calls for the contract to remain in full force and effect until a new agreement is approved.

Dept. of Agriculture, Office of General Counsel, 0-PS-46, 71 FLRA 986 (September 30, 2020)

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