In Big Legal Win For AFGE, Court Strikes Down Trump-Era FLRA Policy Allowing Agency Heads to Unilaterally Rewrite Union Contracts

In a major victory for AFGE, fellow unions, and federal workers, the U.S. Court of Appeals for the D.C. Circuit last week overturned an anti-union policy statement issued by the Trump-era Federal Labor Relations Authority (FLRA) in 2020.

In response to the Department of Agriculture’s request for guidance on the authority of an agency head regarding an expiring contract, the FLRA in 2020 said that when an agency and a union extend an expiring collective bargaining agreement while negotiating a new one, that extension should trigger a new round of agency head review in which new governmentwide rules that conflict with existing collective bargaining agreements can be implemented.

In effect, this gave agency heads the ability to unilaterally rewrite union contracts that union leaders had agreed to extend as written and previously negotiated.

This ruling went against decades of the FLRA’s own precedents. AFGE and other unions immediately filed an appeal.

On Aug. 2 the court granted review of AFGE’s and the other unions’ petitions and struck down the FLRA’s guidance, ruling that contract continuance clauses do not trigger a new round of agency head review or allow the agency to rewrite the union contract. Continuance clauses simply extend the same agreement while the agency and the union negotiate a new one.

“Because the invocation of a continuance clause extends a collective bargaining agreement pending negotiations over its successor, the existing agreement remains “in effect” until a new agreement is in place. Thus, the employing agency may not enforce regulations that conflict with the agreement and that became effective after it did,” the court said.

The FLRA was created by the 1978 Civil Service Reform Act, which allows federal employees to join a union and collectively negotiate with their agencies on issues affecting working conditions. The FLRA’s job is to implement the law and promote effective labor-management relations. Federal employee unions go to the FLRA to challenge agencies’ unfair labor practices (ULPs) or failures to follow their own policies, among other things.

But under the anti-worker Trump administration, the FLRA’s mission was skewed to reflect the administration’s political agenda of decimating the federal workforce and eliminating unions. Besides using the FLRA to issue anti-worker general statement policies, the administration refused for two years to appoint a General Counsel to the FLRA, putting employees who had been wronged in limbo. Agencies refused to comply and got away with it.

Following Trump’s anti-worker executive orders, agencies also abandoned contract negotiations with AFGE in a rush to send the cases to another component of the FLRA, the Federal Service Impasses Panel, which repeatedly ruled against the union under the Trump administration.

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