ORAL ARGUMENT NOT YET SCHEDULED

Nos. 20-1398, 20-1399, 20-1405

IN THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

______________________________

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, 

AFL-CIO, et al.,

Petitioners,

v.

FEDERAL LABOR RELATIONS AUTHORITY,

Respondent.

______________________________

ON PETITION FOR REVIEW OF A DECISION OF THE 

FEDERAL LABOR RELATIONS AUTHORITY

______________________________

BRIEF FOR RESPONDENT 

FEDERAL LABOR RELATIONS AUTHORITY

______________________________

 NOAH PETERS

 Solicitor

 REBECCA J. OSBORNE

 Deputy Solicitor

 SARAH C. BLACKADAR

 Attorney 

 Federal Labor Relations Authority 

1400 K Street, N.W.

 Washington, D.C. 20424

 (202) 218-7908 

 

USCA Case #20-1398 Document #1894952 Filed: 04/16/2021 Page 1 of 99
i

CERTIFICATE OF PARTIES, RULINGS, AND RELATED CASES

A. Parties

These consolidated Petitions for Review arise from a request by 

the U.S. Office of Personnel Management (“OPM”) for a general 

statement of policy or guidance from the Federal Labor Relations 

Authority (the “Authority”). In response, the Authority issued its 

decision in U.S. Office of Personnel Management, 71 FLRA 977 (2020) 

(Member DuBester dissenting). The American Federation of 

Government Employees, National Treasury Employees Union 

(“NTEU”), and American Federation of State, County and Municipal 

Employees (collectively, the “Unions”), who were not parties below, have 

filed these Petitions for Review of that decision. In this Court 

proceeding, the Unions are the petitioners and the Authority is the 

respondent.

B. Ruling Under Review

The Unions seek review of the Authority’s decision in U.S. Office 

of Personnel Management, 71 FLRA 977 (2020) (Member DuBester 

dissenting).

USCA Case #20-1398 Document #1894952 Filed: 04/16/2021 Page 2 of 99
ii

C. Related Cases

This case was not previously before this Court or any other court, 

nor is the Authority aware of any related cases currently pending before 

this Court or any other court.

/s/ Noah Peters

Noah Peters

Solicitor

Federal Labor Relations Authority

USCA Case #20-1398 Document #1894952 Filed: 04/16/2021 Page 3 of 99
iii

TABLE OF CONTENTS

CERTIFICATE OF PARTIES, RULINGS, AND RELATED CASES.......i

TABLE OF CONTENTS .......................................................................... iii

TABLE OF AUTHORITIES......................................................................vi

GLOSSARY................................................................................................xi

STATEMENT OF JURISDICTION...........................................................1

STATEMENT OF THE ISSUES PRESENTED .......................................3

RELEVANT STATUTORY PROVISIONS................................................3

STATEMENT OF THE CASE ...................................................................3

STATEMENT OF THE FACTS .................................................................8

I. The Statute Does Not Speak Directly to Union-Initiated 

Midterm Bargaining.....................................................................8

II. The Authority Initially Holds That There Is No Obligation 

to Bargain Midterm, But Is Reversed by the D.C. Circuit .......10

III. On Remand, the Authority Emphasizes That the Parties 

May Limit Midterm Bargaining Via Zipper Clauses................11

IV. Disagreeing with NTEU 1987, the Fourth Circuit Finds 

That the Statute Prohibits Midterm Bargaining......................12

V. The Supreme Court Unanimously Rejects NTEU 1987...........14

VI. The Authority, on Remand, Determines That Midterm 

Bargaining Is Required, Without Deciding Whether Such 

Bargaining is a Unilateral Right or Whether Zipper 

Clauses Are Mandatory Bargaining Subjects ...........................16

USCA Case #20-1398 Document #1894952 Filed: 04/16/2021 Page 4 of 99
iv

VII. The D.C. Circuit in NTEU 2005 Strongly Suggests That 

All Proposals Relating to the Scope of Midterm 

Bargaining Are Mandatory Bargaining Subjects......................18

VIII. The Authority’s Policy Statement Finally Clarifies—After 

Decades of Confusion—That All Proposals Concerning 

Midterm-Bargaining Obligations Are Mandatory Subjects 

of Bargaining...............................................................................21

SUMMARY OF ARGUMENT..................................................................24

STANDARD OF REVIEW........................................................................32

ARGUMENT.............................................................................................35

I. The Policy Statement Satisfies Chevron Step One........................35

A. The Supreme Court Has Unanimously Rejected the Unions’

Argument That the Statute Unambiguously Requires Midterm 

Bargaining...................................................................................35

B. The Statute Does Not Speak Directly to Whether Zipper 

Clauses Are Mandatory Subjects of Bargaining .......................38

II. The Policy Statement Satisfies Chevron Step Two........................46

A. Holding Zipper Clauses to Be Mandatory Subjects of 

Bargaining Is Consistent with the Statute’s Structure............46

B. The Policy Statement Promotes the Statute’s Purposes ..........54

C. The Policy Statement Is Supported by Private-Sector 

Precedent.....................................................................................60

D. The Authority Reasonably Explained Why It Was Departing 

from Interior................................................................................62

E. The Authority Properly Found Zipper Clauses to Be An 

“Appropriate Technique” to Assist in Negotiations ..................64

USCA Case #20-1398 Document #1894952 Filed: 04/16/2021 Page 5 of 99
v

III. After Avoiding the Issue for Two Decades, the Authority 

Reasonably Decided to Issue a Policy Statement 

Clarifying That Zipper Clauses Are Mandatory Subjects of 

Bargaining...................................................................................65

CONCLUSION .........................................................................................69

FED. R. APP. P. RULE 32(A) CERTIFICATION ...................................71

CERTIFICATE OF SERVICE..................................................................71

STATUTORY ADDENDUM

USCA Case #20-1398 Document #1894952 Filed: 04/16/2021 Page 6 of 99
vi

TABLE OF AUTHORITIES

PAGE(S)

CASES

Am. Fed’n of Gov’t Emps., AFL-CIO v. FLRA,

750 F.2d 143 (D.C. Cir. 1984)..............................................................1, 2

Am. Fed’n of Gov’t Emps., Local 3937, AFL-CIO,

64 FLRA 17 (2009) ...................................................................................5

Am. Fed'n of Gov't Emps., Locs. 225, 1504, & 3723, AFL-CIO v. FLRA,

712 F.2d 640 (D.C. Cir. 1983)................17, 20, 21, 26, 27, 41, 42, 46, 47

Ass’n of Civilian Technicians., Mont. Air Chapter No. 29 v. FLRA,

22 F.3d 1150 (D.C. Cir. 1994)................................................................32

Ass’n of Civilian Technicians Ky. Long Rifle Chapter & Bluegrass 

Chapter,

70 FLRA 968, (2018) ................................................................................7

Bennett v. Spear,

520 U.S. 154 (1997)..................................................................................2

Bureau of Alcohol, Tobacco & Firearms v. FLRA,

464 U.S. 89 (1983)..................................................................................32

Cellco P’ship v. Fed. Com.,

357 F.3d 88 (D.C. Cir. 2004)..................................................................34

Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc.,

467 U.S. 837 (1984)..............................................................32, 33, 35, 36

Commander Carswell Air Force Base, Tex.,

31 FLRA 620 (1988) .................................................................................4

Dep’t of Health & Hum. Servs.,

18 FSIP 077 (Apr. 1, 2019) ......................................................................4

USCA Case #20-1398 Document #1894952 Filed: 04/16/2021 Page 7 of 99
vii

Dep’t of Navy, Marine Corps Logistics Base, Albany, Ga. v. FLRA,

962 F.2d 48 (D.C. Cir. 1992)..................................................9, 29, 55, 56

FLRA v. Internal Revenue Serv.,

838 F.2d 567 (D.C. Cir. 1988)........................................12, 25, 39, 51, 61

Libr. of Cong. v. FLRA,

699 F.2d 1280, 1289 (D.C. Cir. 1983)....................................................33

Internal Revenue Serv. v. FLRA,

963 F.2d 429 (D.C. Cir. 1992)....................................................55, 56, 57

Internal Revenue Serv.,

29 FLRA 162 (1987) .............................................................11, 12, 25, 38

Internal Revenue Service,

17 FLRA 731 (1985) ...............................................................................10

Litton Sys.,

300 NLRB 324 (1990).......................................................................30, 61

Loc. 32, Am. Fed’n of Gov’t Emps., AFL-CIO v. FLRA,

774 F.2d 498 (D.C. Cir. 1985)................................................................34

Nat’l Treasury Emps. Union,

59 FLRA 217 (2003) ...................................................................18, 44, 45

Nat’l Fed’n of Fed. Emps., Loc. 1309 v. Dep’t of Interior,

526 U.S. 86 (1999).................................................7, 8, 15, 16, 25, 27, 28,

................................................................ 36, 37, 38, 43, 48, 49, 52, 63, 69

Nat’l Lifeline Ass’n v. Fed. Com. Comm’n,

983 F.3d 498 (D.C. Cir. 2020)................................................................66

Nat’l Treasury Emps. Union v. FLRA,

399 F.3d 334 (D.C. Cir. 2005).....................19, 20, 21, 26, 27, 31, 36, 40,

............................................................................44, 45, 46, 47, 62, 63, 69

USCA Case #20-1398 Document #1894952 Filed: 04/16/2021 Page 8 of 99
viii

Nat’l Treasury Emps. Union v. FLRA,

754 F.3d 1031 (D.C. Cir. 2014)........................................................33, 34

Nat’l Treasury Emps. Union v. FLRA,

810 F.2d 295 (D.C. Cir. 1987)........................................11, 25, 35, 51, 60

Nat’l Treasury Emps. Union,

64 FLRA 156 (2009) ......................4, 7, 21, 22, 27, 28, 41, 47, 48, 49, 50,

..................................................................................52, 53, 59, 64, 68, 69

NLRB v. Jacobs Manufacturing Co.,

196 F.2d 680 (2d Cir. 1952) ...................................................................60

NLRB v. Tomco Commc’ns, Inc.,

567 F.2d 871 (9th Cir.1978).................................................20, 30, 40, 61

Shays v. Fed. Election Comm’n,

414 F.3d 76 (D.C. Cir. 2005)..................................................................34

Soc. Sec. Admin. v. FLRA,

956 F.2d 1280 (4th Cir. 1992)....................................................12, 13, 14

Toledo Blade Co.,

295 NLRB 626 (1989).......................................................................30, 61

U.S. Dep’t of Interior v. FLRA,

132 F.3d 157 (4th Cir. 1997)..................................................................15

U.S. Dep’t of Energy v. FLRA,

106 F.3d 1158 (4th Cir. 1997)..........................................................14, 52

U.S. Dep’t of Health & Hum. Servs. Soc. Sec. Admin. Balt., Md.,

47 FLRA 1004 (1993) ...............................................................................9

U.S. Dep’t of the Interior Wash., D.C.,

56 FLRA 45 (2000) .....................17, 18, 28, 45, 49, 50, 59, 62, 64, 68, 69

USCA Case #20-1398 Document #1894952 Filed: 04/16/2021 Page 9 of 99
ix

U.S. Office of Personnel Management,

71 FLRA 423 (2019) .........................................................................67, 68

U.S. Office of Personnel Management,

71 FLRA 977 (2020) .................................................................................1

United States v. Dorcely,

454 F.3d 366 (D.C.Cir.2006)..................................................................37

We the People Found., Inc. v. United States,

485 F.3d 140 (D.C. Cir. 2007)................................................................37

Winslow v. Fed. Energy Regulatory Comm’n,

587 F.3d 1133 (D.C.Cir.2009)................................................................37

STATUTES

5 U.S.C. § 7101(b).....................................................................................14

5 U.S.C. § 7105(a)...........................................................................1, 33, 65

5 U.S.C. § 7106 ..........................................................................7, 16, 42-43

5 U.S.C. § 7114(a)(4).........................................8, 13, 16, 23, 31, 52, 63, 64

5 U.S.C. § 7114(b).....................................................................8, 13, 28, 54

5 U.S.C. § 7119 ...................................................................................13, 64

5 U.S.C. § 7121 ...................................................................................41, 42

5 U.S.C. § 7123(a)...................................................................................1, 2

29 U.S.C. § 158(d).............................................................................8, 9, 13

U.S. Const., art. III, § 1 ............................................................................37

USCA Case #20-1398 Document #1894952 Filed: 04/16/2021 Page 10 of 99
x

REGULATIONS

5 C.F.R. § 2427.2(a) ...................................................................................1

5 C.F.R. § 2427.4........................................................................................1

5 C.F.R. § 2427.5.......................................................................1, 32, 65, 66

OTHER AUTHORITIES

MATTHEW BENDER & CO., INC., 1 DRAFTING THE UNION CONTRACT (2020)

................................................................................................................61

OPM, Guidance for Implementation of Executive Order 14003 -

Protecting the Federal Workforce (Mar. 5, 2021) ..................................60

USCA Case #20-1398 Document #1894952 Filed: 04/16/2021 Page 11 of 99
xi

GLOSSARY

Authority The Federal Labor Relations Authority

Br. Petitioners’ opening brief

CBA Collective Bargaining Agreement 

JA The Joint Appendix 

NLRA The National Labor Relations Act

NLRB The National Labor Relations Board

NTEU National Treasury Employees Union

OPM The U.S. Office of Personnel Management

Panel The Federal Service Impasses Panel

Policy Statement U.S. Office of Personnel Management, 71 FLRA 

977 (2020) (Member DuBester dissenting)

Reopener Clause A CBA provision specifying the conditions under 

which a party may seek to renegotiate topics 

“covered by” the CBA during the CBA’s term

Statute The Federal Service Labor-Management 

Relations Statute, 5 U.S.C. §§ 7101-7135 (2018)

Unions Petitioners, American Federation of Government 

Employees, National Treasury Employees Union, 

and American Federation of State, County and 

Municipal Employees

Zipper Clause A provision that would foreclose or limit midterm 

bargaining during the term of a CBA

USCA Case #20-1398 Document #1894952 Filed: 04/16/2021 Page 12 of 99
1

STATEMENT OF JURISDICTION

In the Federal Service Labor-Management Relations Statute, 5 

U.S.C. §§ 7101–7135 (2018) (“Statute”), Congress charged the Authority 

with “provid[ing] leadership in establishing policies and guidance” 

under the Statute. 5 U.S.C. § 7105(a)(1). Part 2427 of the Authority’s 

regulations sets forth procedures by which parties may request general 

statements of policy or guidance. Those regulations allow the head of 

any federal agency, union, or lawful association (or designee) to “ask the 

Authority for” a policy statement. 5 C.F.R. § 2427.2(a). 

In evaluating such requests, the Authority considers several 

factors. See id. § 2427.5(c). Before issuing a policy statement, the 

Authority will, “as it deems appropriate,” give “interested parties” an 

opportunity to comment. Id. § 2427.4. The Authority thus had subject 

matter jurisdiction to issue U.S. Office of Personnel Management, 71 

FLRA 977 (2020) (Member DuBester dissenting) (the “Policy 

Statement”) under § 7105(a)(1) of the Statute and part 2427 of its 

regulations.

The Policy Statement is a “final order of the Authority” under 5 

U.S.C. § 7123(a). See Am. Fed’n of Gov’t Emps., AFL-CIO v. FLRA, 750 

USCA Case #20-1398 Document #1894952 Filed: 04/16/2021 Page 13 of 99
2

F.2d 143, 144-145 (D.C. Cir. 1984) (“AFGE 1984”). It “mark[s] the 

consummation of the [Authority]’s decisionmaking process” and is not 

“of a merely tentative or interlocutory nature.” Bennett v. Spear, 520 

U.S. 154, 177-78 (1997) (internal quotation marks and citation omitted). 

And it is an action “by which rights or obligations have been 

determined, or from which legal consequences will flow.” Id. at 178 

(internal quotation marks omitted). 

As in AFGE 1984, the Policy Statement contains the Authority’s 

“final word on the subject” of whether zipper clauses are mandatory 

subjects of bargaining under the Statute, and “[n]othing further needs 

to be done by the” Authority to implement it. AFGE 1984, 750 F.2d at 

144. After receiving comments from interested parties, the Authority 

held “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.” (JA 78.) 

Thus, the Policy Statement is a “final order of the Authority” that 

is reviewable in this Court. AFGE 1984, 750 F.2d at 144 (“the term 

‘order’ as employed in section 7123(a) of the [S]tatute should be 

USCA Case #20-1398 Document #1894952 Filed: 04/16/2021 Page 14 of 99
3

interpreted to permit direct review of a final agency interpretation, such 

as this one, promulgated after receipt of comments from interested 

parties.”). 

STATEMENT OF THE ISSUES PRESENTED

1. Does the Statute explicitly or by unambiguous implication 

give unions an unqualified right to engage in midterm bargaining?

2. Does the Statute speak directly to the precise question of 

whether zipper clauses are mandatory subjects of bargaining?

3. Was it reasonable for the Authority to hold that the Statute 

neither requires nor prohibits midterm bargaining, but instead leaves 

questions regarding the scope of such bargaining for the parties to 

resolve as part of their term negotiations?

RELEVANT STATUTORY PROVISIONS

All relevant statutory and regulatory provisions are contained in 

the attached Statutory Addendum. (Add. 1.)

STATEMENT OF THE CASE

By letter dated July 24, 2019, OPM asked the Authority to issue a 

general statement of policy or guidance holding that zipper clauses are 

mandatory subjects of bargaining. (JA 1.) A “zipper clause” is a 

USCA Case #20-1398 Document #1894952 Filed: 04/16/2021 Page 15 of 99
4

provision in a collective bargaining agreement (“CBA”) that forecloses or 

limits midterm bargaining during the CBA’s term. (Id.) OPM noted 

that the Authority had never squarely decided whether zipper clauses 

are mandatory subjects of bargaining that may be bargained to 

impasse. (Id.) 

OPM observed that “reopener clauses”—provisions that would 

require mid-term bargaining over matters expressly provided for in an 

existing CBA—are mandatory subjects that may be bargained to 

impasse. (JA 2 (citing Nat’l Treasury Emps. Union, 64 FLRA 156, 159 

(2009) (“NTEU 2009”).) Thus, the Federal Service Impasses Panel 

(“Panel”) could impose reopener clauses—provisions expanding the 

scope of midterm bargaining to encompass even matters discussed and 

agreed-upon in term negotiations—on the parties during impasse 

proceedings. (Id.)1 But the Panel could not similarly require the 

 

1 The Panel cannot impose a contract term on the parties if no previous 

Authority decision has found a “substantively identical” proposal to be a 

mandatory subject of bargaining. Commander Carswell Air Force Base, 

Tex., 31 FLRA 620, 623-25 (1988). Thus, the Panel has declined to 

exercise jurisdiction over proposed zipper clauses. See, e.g., Dep’t of 

Health & Hum. Servs., 18 FSIP 077 (Apr. 1, 2019). To even get before 

the Panel, moreover, a party proposing a zipper clause would run the 

risk of drawing an unfair labor practice charge, as “insisting to impasse 

USCA Case #20-1398 Document #1894952 Filed: 04/16/2021 Page 16 of 99
5

parties to adopt zipper clauses—clauses limiting the circumstances 

under which midterm bargaining may take place—because the 

Authority had never directly held that such clauses are mandatory 

subjects of bargaining. (Id.) 

The Authority’s precedent had thus resulted in a “fundamental 

inequity in application of the” Statute. (Id.) On one hand, unions could 

bargain to impasse regarding provisions greatly expanding midterm 

bargaining, and the Panel may force the parties to adopt such 

provisions. (Id.) But, on the other, agencies could not bargain to 

impasse regarding provisions that would partially or fully limit the 

scope of midterm bargaining. (JA 1.) 

OPM urged that the lack of clear guidance on whether zipper 

clauses are mandatory subjects of bargaining had resulted in 

“uncertainty, ambiguity, and inefficiency,” as well as “costly and timeconsuming litigation.” (JA 4.) In OPM’s view, the efficiencies created 

by recognizing zipper clauses as mandatory bargaining subjects “could 

be enormous not just in terms of minimizing costly bargaining but also 

 

on a permissive subject of bargaining violates the [Statute].” (JA 72 n.6 

(quoting Am. Fed’n of Gov’t Emps., Local 3937, AFL-CIO, 64 FLRA 17, 

21 (2009).)

USCA Case #20-1398 Document #1894952 Filed: 04/16/2021 Page 17 of 99
6

by incentivizing the parties to raise and address bargaining matters in 

the term bargaining process.” (Id.) 

The Authority asked for public comments on whether it should 

grant OPM’s request and, if so, what the Authority’s guidance should 

be. (JA 7-8.) NTEU, along with three other unions, four agencies, and 

two individuals, submitted timely public comments. (JA 15-65.) In its 

comment, NTEU argued that unions have a “unilateral right” to 

initiate midterm bargaining under the Statute, and thus any proposal 

that would limit a union’s ability to engage in midterm bargaining is a 

permissive, not mandatory, bargaining subject. (JA 43-46.)

After carefully considering OPM’s request and the public 

comments it received, the Authority issued a thorough and wellreasoned Policy Statement “hold[ing] that proposals that concern 

midterm-bargaining obligations—whether they resemble reopener or 

zipper clauses, or take some other form—are mandatory subjects of 

bargaining under the Statute.” (JA 76.) “That treatment,” the 

Authority observed, “is consistent with the Authority’s previous 

recognition that matters relating to the parties’ midterm-bargaining 

USCA Case #20-1398 Document #1894952 Filed: 04/16/2021 Page 18 of 99
7

relationship plainly relate to conditions of employment.” (Id. (citing 

NTEU 2009, 64 FLRA at 157).) 

“Further, the Statute presumes that all matters relating to 

conditions of employment are mandatory subjects of bargaining unless 

the text explicitly or by unambiguous implication vests in a party an 

unqualified, or ‘unilateral,’ right.” (Id.) And the Supreme Court had 

determined that the Statute does not explicitly or unambiguously confer 

a right to union-initiated midterm bargaining. (JA 73, 75 (citing Nat’l 

Fed’n of Fed. Emps., Loc. 1309 v. Dep’t of Interior, 526 U.S. 86 (1999)) 

(“NFFE”).)2 Thus, “because neither party would be required to waive a 

statutory right, any proposal concerning midterm bargaining would 

 

2 The reason for the “union-initiated” qualifier is that the Statute, at 5 

U.S.C. § 7106(b)(2)-(3), expressly requires midterm bargaining over the 

“impact and implementation” of management-initiated changes. NFFE, 

526 U.S. at 96-98; Ass’n of Civilian Technicians Ky. Long Rifle Chapter 

& Bluegrass Chapter, 70 FLRA 968, 969 (2018) (“an appropriate 

arrangement under § 7106(b)(3) of the Statute” is “a mandatory subject 

of negotiation.”). In the Policy Statement, the Authority made clear 

that it was “not discussing scenarios in which management exercises a 

right under § 7106(a) or (b)(1) to make changes to conditions of 

employment during the term of a CBA and a union seeks negotiations 

under § 7106(b)(2) or (b)(3) due to those changes—situations commonly 

known as ‘impact-and-implementation bargaining.’” (JA 76 n. 39.) 

USCA Case #20-1398 Document #1894952 Filed: 04/16/2021 Page 19 of 99
8

come within the default rule that all matters relating to conditions of 

employment are mandatory subjects of bargaining.” (JA 76-77.) 

Shortly after the Authority issued its Policy Statement, the 

Unions filed these Petitions for Review. 

STATEMENT OF THE FACTS

I. The Statute Does Not Speak Directly to Union-Initiated 

Midterm Bargaining

The Statute’s basic bargaining obligation is set forth in 

§ 7114(a)(4), which provides that agencies and unions “shall meet and 

negotiate in good faith for the purposes of arriving at a [CBA].” 5 

U.S.C. § 7114(a)(4). The duty “to negotiate in good faith” means that 

the parties must negotiate “with a sincere resolve to reach a [CBA].” Id. 

§ 7114(b)(1).

The Statute’s provisions do not “expressly address union-initiated 

midterm bargaining.” NFFE, 526 U.S. at 92. The Statute’s failure to 

expressly address midterm bargaining is notable in light of the fact that 

Congress spoke directly to such bargaining in the National Labor 

Relations Act (“NLRA”), the law upon which the Statute was modeled. 

See 29 U.S.C. § 158(d) (obligating “the employer and the representative 

of the employees to meet at reasonable times and confer in good faith 

USCA Case #20-1398 Document #1894952 Filed: 04/16/2021 Page 20 of 99
9

with respect to wages, hours, and other terms and conditions of 

employment, or the negotiation of an agreement, or any question arising 

thereunder”) (emphasis added). 

Like the National Labor Relations Board (“NLRB”), the Authority 

does not require midterm bargaining where a matter is “covered by” or 

“contained in” a CBA. Dep’t of Navy, Marine Corps Logistics Base, 

Albany, Ga. v. FLRA, 962 F.2d 48, 53-55 (D.C. Cir. 1992) (“Navy”). But 

unlike in the private sector, the federal-sector “covered by” doctrine 

does not arise from an express statutory command. Compare 29 U.S.C. 

§ 158(d) (NLRA provision stating that the duty to bargain “shall not be 

construed as requiring either party to discuss or agree to any 

modification of the terms and conditions contained in a contract for a 

fixed period, if such modification is to become effective before such 

terms and conditions can be reopened under the provisions of the 

contract.”) Instead, the federal-sector “covered by” doctrine is based on 

the Statute’s general policy favoring “stability and repose with respect 

to matters reduced to writing in the agreement.” U.S. Dep’t of Health & 

Hum. Servs. Soc. Sec. Admin. Balt., Md., 47 FLRA 1004, 1017 (1993) 

(quoting Navy, 962 F.2d at 59). 

USCA Case #20-1398 Document #1894952 Filed: 04/16/2021 Page 21 of 99
10

II. The Authority Initially Holds That There Is No Obligation 

to Bargain Midterm, But Is Reversed by the D.C. Circuit

The Authority first considered the issue of midterm bargaining in 

Internal Revenue Service, 17 FLRA 731 (1985) (“IRS I”). In IRS I, the 

Authority rejected the notion that there was an “obligation under the 

Statute to bargain over proposals initiated by a union during the term 

of an agreement which are unrelated to management-initiated changes 

in conditions of employment.” Id. at 732. Looking to the text, purpose 

and history of the Statute, the Authority found that, “[w]hile Congress 

found collective bargaining in the public interest, in so doing, Congress 

further expressed an intent to limit the bargaining obligation over 

union-initiated proposals to situation[s] where parties are negotiating a 

basic [CBA].” Id. at 734-35. 

“Were the Authority to now hold that there is a statutory 

obligation for agency management to bargain at any time during the life 

of a [CBA] over union-initiated proposals which are unrelated to 

changes initiated by agency management,” the Authority observed, “the 

ability of the parties to rely upon such basic agreements as a stable 

foundation for their day-to-day relations would be diminished.” Id. at 

736. 

USCA Case #20-1398 Document #1894952 Filed: 04/16/2021 Page 22 of 99
11

The D.C. Circuit, however, reversed the Authority’s decision and 

found that the Statute requires the parties to bargain midterm “over 

union proposals that pertain to negotiable issues not mentioned in the 

agreement.” Nat’l Treasury Emps. Union v. FLRA, 810 F.2d 295, 296 

(D.C. Cir. 1987) (“NTEU 1987”). NTEU 1987 acknowledged that the 

Statute’s text did not speak directly to midterm bargaining. Id. at 298. 

Looking beyond the Statute’s text, NTEU 1987 found support for its 

conclusion in NLRB precedent and a statutory purpose of strengthening 

federal unions and encouraging collective bargaining. Id. at 298-301. 

III. On Remand, the Authority Emphasizes That the Parties 

May Limit Midterm Bargaining Via Zipper Clauses

On remand from NTEU 1987, the Authority found that the 

Statute “requires an agency to bargain during the term of a [CBA] on 

negotiable union proposals concerning matters which are not contained 

in the agreement unless the union has waived its right to bargain about 

the subject matter involved.” Internal Revenue Serv., 29 FLRA 162, 166 

(1987) (“IRS II”). “Such a waiver of bargaining rights,” the Authority 

held, “may be established by (1) express agreement, or (2) bargaining 

history.” Id. As to the first category, the Authority emphasized that “a 

union may contractually agree to waive its right to initiate bargaining 

USCA Case #20-1398 Document #1894952 Filed: 04/16/2021 Page 23 of 99
12

in general by a ‘zipper clause’, that is, a clause intended to waive the 

obligation to bargain during the term of the agreement on matters not 

contained in the agreement.” Id.

Following the issuance of IRS II, the IRS filed a Suggestion of 

Initial Hearing En Banc, which the D.C. Circuit denied. See FLRA v. 

Internal Revenue Serv., 838 F.2d 567, 568 (D.C. Cir. 1988) (per curiam) 

(“IRS III”). Concurring in the denial, Judge Edwards, joined by Judge 

Silberman, strongly rejected the IRS’s suggestion that “waivers of 

bargaining rights are only ‘permissive’ subjects for negotiation, over 

which management may not bargain to impasse.” Id. at 570 (Edwards, 

J., concurring). 

IV. Disagreeing with NTEU 1987, the Fourth Circuit Finds 

That the Statute Prohibits Midterm Bargaining

In Social Security Administration v. FLRA, 956 F.2d 1280, 1284 

(4th Cir. 1992) (“SSA”), the Fourth Circuit rejected NTEU 1987 and 

came to the precise opposite conclusion: “union-initiated midterm 

bargaining is not required by the [S]tatute and would undermine the 

congressional policies underlying the [S]tatute.” 956 F.2d at 1281. 

Such bargaining, the Fourth Circuit found, is at odds with the Statute’s 

text, which “contemplate[s] that [the duty to bargain] arises as to only 

USCA Case #20-1398 Document #1894952 Filed: 04/16/2021 Page 24 of 99
13

one, basic agreement[.]” Id. at 1284 (citing 5 U.S.C. §§ 7114(a)(4), (b)(1) 

& (b)(5)). The Fourth Circuit further found that textual differences 

between the Statute and the NLRA—particularly the Statute’s lack of 

an explicit “contained in” exception to midterm bargaining—showed 

that the Statute was not meant to require midterm bargaining. Id. at 

1287 (citing 29 U.S.C. § 158(d)). 

Additionally, the Fourth Circuit noted “practical distinctions” 

between private-sector and federal-sector bargaining that made a 

midterm bargaining requirement inappropriate in the latter context. 

Id. “In the private sector, once an impasse is reached, the union’s 

alternative is often to strike—a drastic measure that is unlikely to be 

utilized midterm because all issues worthy of such action typically are 

resolved by the basic [CBA].” Id. In the federal sector, by contrast, the 

union may move upon impasse to binding arbitration before the Panel. 

Id. (citing 5 U.S.C. § 7119(b) & (c)). “Because [Panel] arbitration—

unlike striking—is relatively costless for a union to invoke, many more 

midterm negotiations would be expected in the public sector than the 

private sector.” Id. 

USCA Case #20-1398 Document #1894952 Filed: 04/16/2021 Page 25 of 99
14

Federal-sector unions could thus use binding Panel arbitration to 

“achieve a tactical advantage that is absent in the private sector . . . . by 

negotiating—and then arbitrating—issues seriatim rather than as a 

unified package.” Id. Such “seriatim midterm bargaining—and then 

seriatim [Panel] arbitration—over individual issues raised midterm” 

would contravene the Statute’s fundamental purposes of ensuring 

contractual stability and an “effective and efficient Government.” Id. at 

1288 (quoting 5 U.S.C. § 7101(b)). Zipper clauses would not be “an 

adequate solution to the problem” because the Authority had never 

expressly held such clauses to be mandatory subjects of bargaining that 

may be negotiated to impasse. Id. 

The Fourth Circuit subsequently extended SSA to hold that 

“clause[s] that require[] an agency to bargain midterm with respect to 

union-initiated proposals”—that is, reopener clauses—are nonnegotiable. U.S. Dep’t of Energy v. FLRA, 106 F.3d 1158, 1163 (4th Cir. 

1997) (“Energy”). In the Fourth Circuit’s view, “not only is unioninitiated midterm bargaining not mandated by the [Statute],” but it is 

also “contrary to the [Statute].” Id. 

V. The Supreme Court Unanimously Rejects NTEU 1987 

USCA Case #20-1398 Document #1894952 Filed: 04/16/2021 Page 26 of 99
15

After the Fourth Circuit, applying Energy, found that an agency’s 

refusal to bargain over a reopener clause was not an unfair labor 

practice, see U.S. Department of Interior v. FLRA, 132 F.3d 157 (4th Cir. 

1997), the Supreme Court granted certiorari to resolve the split between 

the D.C. Circuit and Fourth Circuit, NFFE, 526 U.S. at 88-91. Before 

the High Court, the union argued that the Statute unambiguously 

required midterm bargaining. (See Brief for Petitioner National 

Federation of Federal Employees, Local 1309, Nat’l Fed’n of Fed. Emps., 

Loc. 1309 v. Dep’t of the Interior, U.S. Nos. 97-1184, 97-1243, 1998 WL 

34081049, at 13-29.) 

The Supreme Court unanimously rejected this argument. It found 

“ambiguity created by the Statute’s use of general language that might, 

or might not, encompass various forms of midterm bargaining.” NFFE, 

526 U.S. at 98. “That kind of statutory ambiguity is inconsistent both 

with the Fourth Circuit’s absolute reading of the Statute [in SSA] and 

also with the D.C. Circuit’s similarly absolute, but opposite, reading [in 

NTEU 1987].” Id. Instead, “Congress delegated to the Authority the 

power to determine—within appropriate legal bounds—whether, when, 

USCA Case #20-1398 Document #1894952 Filed: 04/16/2021 Page 27 of 99
16

where, and what sort of midterm bargaining is required.” Id. at 98-99 

(citations omitted). 

As to “[t]he specific question before us”—“whether an agency must 

bargain endterm about including in the basic labor contract a clause 

that would require certain forms of midterm bargaining”—the Supreme 

Court found that the Statute gave the Authority “leeway” in answering 

that question as well. Id. at 99-100. Thus, “the Statute does not resolve 

the question of midterm bargaining, nor the related question of 

bargaining about midterm bargaining.” Id. at 100. 

The four dissenting justices believed that the Statute 

unambiguously forbade midterm bargaining. Id. at 101 (O’Connor, J., 

dissenting). They noted that the Statute “specifies a few instances 

where midterm bargaining is required, see 5 U.S.C. § 7106(b), but it 

contains no provision that expressly or implicitly imposes a general duty 

on agencies to bargain during the term of a [CBA].” Id. In their view, 

the Statute, by its terms, “requires an agency to ‘meet and negotiate in 

good faith’ with unions only ‘for the purposes of’ achieving an end: a 

comprehensive [CBA].” Id. (quoting 5 U.S.C. § 7114(a)(4)). 

VI. The Authority, on Remand, Determines That Midterm 

Bargaining Is Required, Without Deciding Whether Such 

USCA Case #20-1398 Document #1894952 Filed: 04/16/2021 Page 28 of 99
17

Bargaining is a Unilateral Right or Whether Zipper 

Clauses Are Mandatory Bargaining Subjects

On remand from the Supreme Court, the Authority “conclude[d] 

that an agency is required to bargain over a proposal obligating the 

agency to engage in midterm bargaining over matters not contained in 

or covered by the term agreement” because such a proposal “restates a 

statutory obligation.” U.S. Dep’t of the Interior Wash., D.C., 56 FLRA 

45, 45 (2000) (“Interior”).

Interior based its holding that midterm bargaining was required 

on two policy considerations: (1) such bargaining “furthers Congress’s 

goal of promoting and strengthening collective bargaining in the federal 

workplace” and (2) “will not result in significant costs or disruptions 

that would outweigh the benefits of such bargaining.” Id. at 52. 

Interior did not consider whether midterm bargaining was a “unilateral 

right[] specifically vested in one party” within the meaning of American 

Federation of Government Employees, Locals 225, 1504, & 3723, AFLCIO v. FLRA, 712 F.2d 640, 646 (D.C. Cir. 1983) (“AFGE 1983”). And 

Interior expressly declined to consider whether zipper clauses were 

mandatory bargaining subjects. Id. at 54.

USCA Case #20-1398 Document #1894952 Filed: 04/16/2021 Page 29 of 99
18

Member Cabaniss dissented in part. She agreed that the union’s 

proposal requiring the agency to bargain midterm “on any negotiable 

matters not covered by the provisions of” the parties’ CBA was a 

mandatory subject of bargaining. Id. at 55 (opinion of Member 

Cabaniss, concurring in part and dissenting in part). However, she 

disagreed with the majority’s decision not to address “the interrelated 

question” of whether zipper clauses are mandatory bargaining subjects, 

which she considered “possibly the most crucial aspect of midterm 

bargaining[.]” Id. 

VII. The D.C. Circuit in NTEU 2005 Strongly Suggests That All 

Proposals Relating to the Scope of Midterm Bargaining 

Are Mandatory Bargaining Subjects

Three years later, in National Treasury Employees Union, 59 

FLRA 217, 220 (2003) (“NTEU 2003”), the Authority held that proposals 

limiting an agency’s ability to invoke the “covered by” defense were 

permissive subjects only. The Authority reasoned that the “covered by” 

doctrine was a “statutory right” because it derives from “the Statute’s 

purposes of stability and repose[,]” and any proposal that requires a 

party to waive a statutory right is a permissive subject of bargaining. 

NTEU 2003, 59 FLRA at 220. 

USCA Case #20-1398 Document #1894952 Filed: 04/16/2021 Page 30 of 99
19

NTEU petitioned for review, urging that the agency was required 

to bargain over its proposals. It contended that its proposals “sought 

nothing more than a limited reopener, or ‘reverse zipper clause.’” Brief 

for Petitioner, Nat’l Treasury Emps. Union v. FLRA, D.C. Cir. No. 03-

1351, 2004 WL 960785, at 8 (May 3, 2004). In its view, “[t]here can be 

no question that the duty to bargain extends to a party’s attempt to 

define precisely the mutual bargaining obligations during the term of a 

[CBA].” Id. at 7-8. 

The D.C. Circuit granted the petition, finding the Authority’s 

decision deficient on two grounds. First, the Authority had failed to 

consider whether, “even if the ‘covered by’ test defines the scope of a 

statutory right, it is not a ‘unilateral’ statutory right, and thus not 

subject to permissive bargaining only.” Nat’l Treasury Emps. Union v. 

FLRA, 399 F.3d 334, 339 (D.C. Cir. 2005) (“NTEU 2005”). The Court 

noted that “[m]any provisions of the [Statute] confer benefits and 

impose obligations in varying degrees on labor and management[,]” but 

“[n]ot all of these provisions constitute ‘statutory rights” that must be 

waived before they are negotiable.” Id. at 339-40. Instead, the Statute 

“establishes that all ‘conditions of employment’ are presumed to be 

USCA Case #20-1398 Document #1894952 Filed: 04/16/2021 Page 31 of 99
20

mandatory subjects of bargaining” unless the Statute “explicitly or by 

unambiguous implication vests in a party an unqualified ‘right.’” Id. at 

340 (quoting AFGE 1983, 712 F.2d at 649, 647 n.27). The Court held 

that the Authority had failed to sufficiently address AFGE 1983 and 

other “unilateral rights” cases in its treatment of the “covered by” 

doctrine. Id. at 340-41.

Second, the Court found that the Authority had “fail[ed] to explain 

(or even to discuss) the relationship between the Union proposals at 

issue and both [Authority] and private sector precedent regarding 

zipper and reopener clauses.” Id. at 341. The Court noted that both 

NLRB and Authority decisions had held reopener clauses to be 

mandatory subjects of bargaining. Id. at 341-42. In addition, the 

Authority had “omit[ted] any discussion of the relationship between a 

zipper clause and the Union’s proposals.” Id. at 343. The Court cited 

NLRB precedent holding zipper clauses to be mandatory bargaining 

subjects. Id. (citing NLRB v. Tomco Commc’ns, Inc., 567 F.2d 871, 879 

(9th Cir.1978)). Noting that the Authority had ducked the question of 

the negotiability of zipper clauses in Interior, the Court strongly 

USCA Case #20-1398 Document #1894952 Filed: 04/16/2021 Page 32 of 99
21

suggested that the Authority address on remand whether zipper clauses 

are mandatory bargaining subjects. Id.

However, on remand, the Authority yet again declined to address 

the negotiability of zipper clauses. NTEU 2009, 64 FLRA at 159 n.10. 

Instead, it found that there was no explicit or unambiguous right to 

raise a “covered by” defense in the Statute, and thus the “covered by” 

defense was not a unilateral right. Id. at 157. In addition, the 

Authority determined the proposals at issue were “similar to reopener 

proposals, which both the Authority and the [NLRB] have found to be 

mandatory subjects of bargaining.” Id. at 158. Thus, it held that the 

proposals were mandatory subjects of bargaining.

VIII. The Authority’s Policy Statement Finally Clarifies—After 

Decades of Confusion—That All Proposals Concerning 

Midterm-Bargaining Obligations Are Mandatory Subjects 

of Bargaining

By letter dated July 24, 2019, OPM asked the Authority to issue a 

policy statement holding that zipper clauses are mandatory subjects of 

bargaining. (JA 1.) OPM noted that the Authority had never squarely 

decided whether zipper clauses are mandatory subjects that may be 

bargained to impasse. (Id.) The Authority’s precedent had thus 

resulted in a “fundamental inequity in application of the” Statute where 

USCA Case #20-1398 Document #1894952 Filed: 04/16/2021 Page 33 of 99
22

reopener clauses are required bargaining subjects but zipper clauses are 

not. (JA 2.) 

In response, the Authority solicited public comments. (JA 7-8.) 

After carefully considering OPM’s request and the public comments it 

received, the Authority issued a Policy Statement “hold[ing] that 

proposals that concern midterm-bargaining obligations—whether they 

resemble reopener or zipper clauses, or take some other form—are 

mandatory subjects of bargaining under the Statute.” (JA 76.) “That 

treatment,” the Authority observed, “is consistent with the Authority’s 

previous recognition that matters relating to the parties’ midtermbargaining relationship plainly relate to conditions of employment.” 

(Id. (citing NTEU 2009, 64 FLRA at 157).) 

“Further, the Statute presumes that all matters relating to 

conditions of employment are mandatory subjects of bargaining unless 

the text explicitly or by unambiguous implication vests in a party an 

unqualified, or ‘unilateral,’ right.” (Id.) The Authority noted that the 

Supreme Court in NFFE had determined that the Statute does not 

explicitly or unambiguously confer a right to union-initiated midterm 

bargaining. (JA 73, 75.) Thus, “because neither party would be 

USCA Case #20-1398 Document #1894952 Filed: 04/16/2021 Page 34 of 99
23

required to waive a statutory right, any proposal concerning midterm 

bargaining would come within the default rule that all matters relating 

to conditions of employment are mandatory subjects of bargaining.” (JA 

76-77.) 

The Authority found further support—beyond the default rule—

for treating zipper clauses as mandatory subjects. It noted that “adding 

a zipper clause to a CBA may provide management with an assurance 

that its other contractual commitments will not be interpreted as 

imposing an ongoing midterm-bargaining obligation,” thus facilitating 

efficient and effective bargaining. (JA 77.) “In other words, 

management negotiators can have greater confidence that, if they agree 

to union-favored proposals that recognize additional midterm 

bargaining obligations for the agency, then those obligations can be 

counterbalanced with an appropriately tailored zipper clause.” (Id.) 

Thus, a zipper clause may be an “appropriate technique . . . to assist in . 

. . negotiation[s]” under 5 U.S.C. § 7114(a)(4). (Id.)

The Authority observed that, in Interior, it had determined that 

the Statute requires midterm bargaining, while at the same time 

declining to decide whether zipper clauses are mandatory bargaining 

USCA Case #20-1398 Document #1894952 Filed: 04/16/2021 Page 35 of 99
24

subjects. (JA 74-75.) But a key part of Interior’s analysis was flawed. 

(JA 75.) While Interior had asserted that the Statute does not 

distinguish between midterm and term bargaining obligations, the 

Authority found that the mutual obligation to engage in term 

bargaining is clearly established in the Statute, while the mutual 

obligation to bargain midterm is not. (Id.) Indeed, this ambiguity 

regarding midterm bargaining obligations was central to the Supreme 

Court’s NFFE decision. (Id.) 

Thus, the Authority found that it would be inappropriate to treat 

midterm bargaining as a unilateral statutory right, when the Statute 

says nothing about it. “Instead, the Statute leaves midterm-bargaining 

obligations to the parties to resolve as part of their term negotiations.” 

(JA 75-76.)

Shortly after the Authority issued its Policy Statement, the 

Unions filed these Petitions for Review. 

SUMMARY OF ARGUMENT

The Unions argue that the Authority’s Policy Statement fails at 

Chevron step one because the Statute unambiguously requires midterm 

bargaining. (Br. at 23-34.) They cite the Statute’s failure to distinguish 

USCA Case #20-1398 Document #1894952 Filed: 04/16/2021 Page 36 of 99
25

between term and midterm bargaining (Br. at 25-26), its pro-bargaining 

purpose (id. at 26-32), and private-sector precedent (id. at 32-34). 

These are the same arguments relied upon in NTEU 1987, 810 

F.2d at 298-301. And, as the Policy Statement correctly observed, 

NTEU 1987’s analysis was overruled by the Supreme Court in NFFE. 

(JA 73, 75, 77-78.) In NFFE, the High Court concluded that the Statute 

was ambiguous as to whether union-initiated midterm bargaining was 

required, and rejected NTEU 1987’s contrary conclusion. NFFE, 526 

U.S. at 98. 

To the extent the Unions contend that the Statute unambiguously 

provides that zipper clauses are permissive bargaining subjects only, 

NFFE requires that this argument be rejected as well. See Id. at 100 

(holding that “the Statute does not resolve the question of midterm 

bargaining, nor the related question of bargaining about midterm 

bargaining”) (emphasis added). 

In addition, several well-considered statements—from this Court, 

the Authority and even NTEU itself—strongly suggest that zipper 

clauses are mandatory subjects of bargaining. See IRS II, 29 FLRA at 

166; IRS III, 838 F.2d at 568-70 (concurring statement of Edwards, J., 

USCA Case #20-1398 Document #1894952 Filed: 04/16/2021 Page 37 of 99
26

joined by Silberman, J.) (contending that zipper clauses are mandatory 

subjects of bargaining in the federal sector); Brief for Petitioner, Nat’l 

Treasury Emps. Union v. FLRA, D.C. Cir. No. 03-1351, 2004 WL 

960785, at 7-8 (same); NTEU 2005, 399 F.3d at 341-43 (faulting the 

Authority for failing to consider private-sector precedent holding zipper 

clauses to be mandatory subjects of bargaining).

The Unions cite AFGE 1983 and NTEU 2005 for the proposition 

that “if the [Authority’s] ruling on the midterm bargaining right . . . is 

set aside, a zipper clause proposal would have to be considered a 

permissive subject of bargaining.” (Br. at 43.) But this Court’s 

decisions in AFGE 1983 and NTEU 2005 are inconsistent with any 

argument that zipper clauses are permissive subjects only. AFGE 1983 

held that, under the Statute, “[i]t is sensible to view all matters relating 

to conditions of employment as mandatory subjects of bargaining unless 

the Act explicitly or by unambiguous implication vests in a party an 

unqualified ‘right.’” AFGE 1983, 712 F.2d at 647 n.27. NTEU 2005 

noted that “[s]ubsequent decisions by the [Authority] have adopted the 

reasoning of AFGE [1983] that limits permissive subjects of bargaining 

to ‘unilateral rights specifically vested in one party.’” NTEU 2005, 399 

USCA Case #20-1398 Document #1894952 Filed: 04/16/2021 Page 38 of 99
27

F.3d at 340 (collecting cases). And NTEU 2005 found that the 

Authority had acted arbitrarily in holding that proposals that would 

limit a party’s ability to invoke the “covered by” defense were 

permissive subjects without considering its “unilateral rights” 

precedent. Id. at 340-41. 

The Statute does not explicitly vest in unions an unqualified right 

to engage in midterm bargaining. NFFE, 526 U.S. at 92. Nor does it do 

so by “unambiguous implication.” Id. at 98. Thus, AFGE 1983 and 

NTEU 2005 require the conclusion that zipper clauses are mandatory 

subjects of bargaining.

Moving to Chevron step two, the Unions fail to show that the 

Authority’s Policy Statement is unreasonable. Under the Statute, “all 

matters relating to conditions of employment” are presumed to be 

mandatory bargaining subjects “unless the Statute explicitly or by 

unambiguous implication vests in a party an unqualified, or ‘unilateral,’ 

right.” NTEU 2009, 64 FLRA at 157. Authority and judicial precedent 

provide at least three reasons why union-initiated midterm bargaining 

cannot be considered a unilateral right. 

USCA Case #20-1398 Document #1894952 Filed: 04/16/2021 Page 39 of 99
28

First, the Statute does not expressly or by unambiguous 

implication create a right to union-initiated midterm bargaining. 

NFFE, 526 U.S. at 92-98. Second, any right to union-initiated midterm 

bargaining is not “unqualified.” See Interior, 56 FLRA at 53 (noting 

significant limitations on the right to union-initiated midterm 

bargaining). Third, any right to midterm bargaining is not “unilateral.” 

Like the “covered by” doctrine, the policies supporting the right to 

bargain midterm relate to “the parties’ mutual obligation to bargain, 

not unilateral rights.” NTEU 2009, 64 FLRA at 158. 

In sum, the Unions’ view would turn the Statute’s structure on its 

head. It would exalt the right to midterm negotiations, holding that 

unions could never be forced to waive this unwritten right despite the 

fact that it appears nowhere in the Statute. At the same time, the 

Unions’ position would effectively deprive the parties of the ability to 

comprehensively define their midterm bargaining obligations during 

term negotiations—despite the fact that good-faith term bargaining is

an express statutory obligation. See 5 U.S.C. § 7114(b)(1). The 

Authority’s careful analysis in the Policy Statement, by contrast, 

respects the Statute’s structure by treating midterm bargaining 

USCA Case #20-1398 Document #1894952 Filed: 04/16/2021 Page 40 of 99
29

obligations just like any other “condition of employment”—as a 

mandatory subject for term negotiations. (JA 75-77.)

The Unions next contend that the Policy Statement is inconsistent 

with the Statute’s purpose of “promoting collective bargaining.” (Br. at 

28.) But, as the Authority accurately observed, “requiring the parties to 

engage in collective bargaining over an additional topic” advances, 

rather than detracts from, the Statute’s purpose of promoting collective 

bargaining. (JA 77 n. 47.) Indeed, this Court has held that the 

Statute’s purposes of “contractual stability and repose” are undermined, 

not furthered, by “requiring essentially endless bargaining.” Navy, 962 

F.2d at 59. 

Next, the Unions contend that the Authority’s Policy Statement is 

contrary to the Statute’s purpose of “equalizing the positions of labor 

and management at the bargaining table.” (Br. at 30.) Once again, the 

precise opposite is true. The Authority’s Policy Statement eliminates 

the arbitrary disparity that had developed in the Authority’s case law 

between reopener and zipper clauses, whereby only reopener clauses 

could be bargained to impasse. (JA 71-72, 74, 77.) 

USCA Case #20-1398 Document #1894952 Filed: 04/16/2021 Page 41 of 99
30

Nor would requiring bargaining over zipper clauses eliminate the 

ability of unions to engage in midterm bargaining, as the Unions 

erroneously suggest. (Br. at 27-28). As the Authority’s Policy 

Statement noted, unions may bargain to impasse reopener or zipper 

clauses, or a combination thereof, that allow for broad midterm 

bargaining over unforeseen issues. (JA 78 & n.50.)

The Unions contend that the Policy Statement is inconsistent with 

private-sector precedent. (Br. at 32-34.) Not so. Decades of NLRB 

precedent hold that zipper clauses are mandatory subjects that may be 

bargained to impasse. Tomco Commc’ns, Inc., 567 F.2d at 879, Litton 

Sys., 300 NLRB 324, 327-28 (1990); Toledo Blade Co., 295 NLRB 626, 

627 (1989).

The Unions next accuse the Authority of failing to “sensibly 

explain its departure” from Interior. (Br. at 38.) But Interior did not 

consider whether midterm bargaining was a “unilateral right 

specifically vested in one party” within the meaning of AFGE 1983 and 

NTEU 2005. As the Authority correctly recognized in the Policy 

Statement (JA 76), the “dispositive question” as to whether zipper 

clauses are permissive or mandatory subjects of bargaining “is not 

USCA Case #20-1398 Document #1894952 Filed: 04/16/2021 Page 42 of 99
31

whether the proposal involves a ‘statutory right’ but whether that right 

is ‘unilateral.’” NTEU 2005, 399 F.3d at 342 (emphasis added). And 

the Authority properly determined that Interior’s analysis was 

insufficient to establish midterm bargaining as a “unilateral right.” (JA 

75.) 

The Unions misunderstand the Authority’s finding that zipper 

clauses may be an “appropriate technique . . . to assist in any 

negotiation” under 5 U.S.C. § 7114(a)(4) as having been based on an 

observation that zipper clauses may be used as a “bargaining chip.” 

(Br. at 44.) But the Authority held that zipper clauses may be an 

“appropriate technique” because they allow the parties to specify the 

scope and timing of their negotiations, not because they provide a 

bargaining chip. (JA 77.)

Finally, the Unions contend that the Authority failed to 

adequately explain why it chose to issue the Policy Statement. (Br. at 

38-40.) But the Authority correctly noted that the question of whether 

zipper clauses are mandatory subjects of bargaining “has persisted for 

decades without a clear answer,” and that by resolving this question, it 

would “provide guidance with ‘general applicability’ under the Statute 

USCA Case #20-1398 Document #1894952 Filed: 04/16/2021 Page 43 of 99
32

on a matter that currently confronts parties in the context of a labormanagement relationship.” (JA 74-75 (quoting 5 C.F.R. § 2427.5(c).) 

The Unions provide no basis for questioning those determinations; 

indeed, they admit both points in asserting their own standing to 

challenge the Policy Statement. (Br. at 19-21.) Nor was the Authority’s 

previous refusal to issue a policy statement regarding what the Unions 

admit was a “separate . . . issue” (Br. at 38) inconsistent with its 

decision to issue its Policy Statement holding that zipper clauses are 

required bargaining subjects. (JA 76 n.36.) 

Denial of the Petitions for Review is therefore appropriate.

STANDARD OF REVIEW

The Authority is responsible for interpreting and administering 

the Statute. See Bureau of Alcohol, Tobacco & Firearms v. FLRA, 464 

U.S. 89, 97 (1983); Ass’n of Civilian Technicians., Mont. Air Chapter 

No. 29 v. FLRA, 22 F.3d 1150, 1153 (D.C. Cir. 1994) (citing Chevron, 

U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 842-43 (1984) 

(“Chevron”)). “Congress has specifically entrusted the Authority with 

the responsibility to define the proper subjects for collective bargaining, 

drawing upon its expertise and understanding of the special needs of 

USCA Case #20-1398 Document #1894952 Filed: 04/16/2021 Page 44 of 99
33

public sector labor relations.” Libr. of Cong. v. FLRA, 699 F.2d 1280, 

1289 (D.C. Cir. 1983) (“Library”); see also 5 U.S.C. § 7105(a)(2)(E) 

(“[t]he Authority shall . . . resolve[] issues relating to the duty to 

bargain in good faith[.]”)

“Because the ‘Congress has clearly delegated to the Authority the 

responsibility in the first instance to construe the [Statute],’” this Court 

“reviews the Authority’s interpretation of the [Statute] under the 

two-step framework announced in Chevron[.]” Nat’l Treasury Emps. 

Union v. FLRA, 754 F.3d 1031, 1041 (D.C. Cir. 2014) (“NTEU 2014”) 

(alteration in original) (quoting Library, 699 F.2d at 1284). At Chevron 

step one, the Court must determine “whether Congress has directly 

spoken to the precise question at issue.’” Chevron, 467 U.S. at 842. In 

doing so, the Court applies “traditional tools of statutory construction.” 

NTEU 2014, 754 F.3d at 1042 (internal quotation marks omitted). If 

the statute is silent or ambiguous, the Court moves to step two. Id. 

At Chevron step two, “the question for the [C]ourt is whether the 

agency’s interpretation is based on a permissible construction of the 

statute in light of its language, structure, and purpose.” Id. (internal 

USCA Case #20-1398 Document #1894952 Filed: 04/16/2021 Page 45 of 99
34

quotation marks omitted). The Court will “defer to an agency’s 

interpretation of a statute so long as it is reasonable.” Id.

Chevron step two analysis “overlaps with” the Administrative 

Procedure Act’s arbitrary and capricious standard. Shays v. Fed. 

Election Comm’n, 414 F.3d 76, 96 (D.C. Cir. 2005) (internal quotation 

marks omitted). “Under this highly deferential standard of review, the 

court presumes the validity of agency action, and must affirm unless 

the [Authority] failed to consider relevant factors or made a clear error 

in judgment[.]” Cellco P’ship v. Fed. Com. Comm’n, 357 F.3d 88, 93-94 

(D.C. Cir. 2004) (internal quotation marks and citations omitted).

The Authority, like other agencies, “is free to alter its past rulings 

and practices” so long as it provides a “reasoned explanation” for doing 

so. Loc. 32, Am. Fed’n of Gov’t Emps., AFL-CIO v. FLRA, 774 F.2d 498, 

502 (D.C. Cir. 1985). “[A]n agency changing its course must supply a 

reasoned analysis indicating that prior policies and standards are being 

deliberately changed, not casually ignored[.]” Id. (internal quotation 

marks omitted). The reason for such flexibility is that “[a]n initial 

agency interpretation is not instantly carved in stone. On the contrary, 

the agency . . . must consider varying interpretations and the wisdom of 

USCA Case #20-1398 Document #1894952 Filed: 04/16/2021 Page 46 of 99
35

its policy on a continuing basis.” Chevron, 467 U.S. at 863-64 (emphasis 

added). Indeed, in Chevron itself, the Supreme Court deferred to an 

agency interpretation that was a recent reversal of agency policy. Id. at 

857-58. 

ARGUMENT

I. The Policy Statement Satisfies Chevron Step One

A. The Supreme Court Has Unanimously Rejected the 

Unions’ Argument That the Statute Unambiguously 

Requires Midterm Bargaining

Relying closely on NTEU 1987, and quoting extensively from that 

opinion, the Unions argue that the Authority’s Policy Statement fails at 

Chevron step one because the Statute requires midterm bargaining. 

(Br. at 23-34.) In support, the Unions cite the Statute’s failure to 

distinguish between term and midterm bargaining (Br. at 25-26), its 

pro-bargaining purpose (id. at 26-32), and private-sector precedent (id. 

at 32-34). These are the exact same arguments relied upon in NTEU 

1987. Compare NTEU 1987, 810 F.2d at 298, 301 (arguing that the 

Statute does not distinguish between midterm and term bargaining); 

298-299 (emphasizing the Statute’s pro-bargaining purpose); 299-300 

(urging that NLRB precedent requires midterm bargaining). 

USCA Case #20-1398 Document #1894952 Filed: 04/16/2021 Page 47 of 99
36

But, as the Policy Statement correctly observed, these arguments 

were rejected—unanimously—by the Supreme Court in NFFE. (JA 73, 

75, 77-78.) NFFE noted “that the Statute itself does not expressly 

address union-initiated midterm bargaining.” NFFE, 526 U.S. at 92. 

The Supreme Court then proceeded to consider, at length, the Statute’s 

text, structure, history, and underlying policies, as well as NLRB

precedent. Id. at 92-98. After exhausting these traditional tools of 

statutory construction, the Court “f[ound] ambiguity created by the 

Statute’s use of general language that might, or might not, encompass 

various forms of midterm bargaining.” Id. at 98. 

“That kind of statutory ambiguity,” the Supreme Court held, “is 

inconsistent both with the Fourth Circuit’s absolute reading of the 

Statute [in SSA] and also with the D.C. Circuit’s similarly absolute, but 

opposite, reading [in NTEU 1987].” Id. The Supreme Court 

“conclude[d] that Congress ‘left’ the matters of whether, when, and 

where midterm bargaining is required ‘to be resolved by the agency 

charged with the administration of the statute in light of everyday 

realities.’” Id. at 99 (quoting Chevron, 467 U.S. at 865-66). In so doing, 

USCA Case #20-1398 Document #1894952 Filed: 04/16/2021 Page 48 of 99
37

the Supreme Court decisively rejected the Unions’ Chevron step one 

argument. 

Thus, the Unions’ charge that the Authority “failed to exhaust all 

the traditional tools of statutory construction” (Br. at 23) misses the 

mark. The Supreme Court has already exhausted those tools and found 

“that the Statute does not resolve the question of midterm bargaining” 

but instead “delegates to the Federal Labor Relations Authority the 

legal power to determine whether the parties must engage in midterm 

bargaining.” NFFE, 526 U.S. at 100, 88.

This Court, of course, is bound by decisions of the Supreme Court. 

Winslow v. Fed. Energy Regulatory Comm’n, 587 F.3d 1133, 1135 

(D.C.Cir.2009) (“[v]ertical stare decisis—both in letter and in spirit—is 

a critical aspect of our hierarchical Judiciary headed by ‘one supreme 

Court.’” (quoting U.S. Const., art. III, § 1)); We the People Found., Inc. v. 

United States, 485 F.3d 140, 144 (D.C. Cir. 2007) (“we must follow . . . 

binding Supreme Court precedent”); United States v. Dorcely, 454 F.3d 

366, 375 (D.C.Cir.2006) (“carefully considered language of the Supreme 

Court, even if technically dictum, generally must be treated as 

USCA Case #20-1398 Document #1894952 Filed: 04/16/2021 Page 49 of 99
38

authoritative.”). NFFE forecloses the Unions’ argument that the 

Statute unambiguously requires midterm bargaining.

B. The Statute Does Not Speak Directly to Whether 

Zipper Clauses Are Mandatory Subjects of Bargaining

To the extent the Unions contend that the Statute unambiguously 

provides that zipper clauses are permissive bargaining subjects only, 

NFFE requires that this argument be rejected. That is because NFFE 

held not only “that the Statute does not resolve the question of midterm 

bargaining,” but also that it does not resolve “the related question of 

bargaining about midterm bargaining.” NFFE, 526 U.S. at 100. 

In addition, several well-considered statements—from this Court, 

the Authority and even NTEU itself—strongly suggest that zipper 

clauses are mandatory subjects of bargaining. 

As far back as 1987, the Authority emphasized that “a union may 

contractually agree to waive its right to initiate bargaining in general 

by a ‘zipper clause’, that is, a clause intended to waive the obligation to 

bargain during the term of the agreement on matters not contained in 

the agreement.” IRS II, 29 FLRA at 166. 

Building on that statement, two D.C. Circuit judges with 

extensive labor law backgrounds urged that zipper clauses were 

USCA Case #20-1398 Document #1894952 Filed: 04/16/2021 Page 50 of 99
39

mandatory subjects of bargaining under the Statute. IRS III, 838 F.2d 

at 568-70 (concurring statement of Edwards, J., joined by Silberman, 

J.). Judges Edwards and Silberman dismissed as “utterly specious” the 

argument that the zipper clauses are permissive subjects of bargaining 

in the federal sector. Id. at 570. They noted that “literally scores of 

cases from the private sector hold[] that a union may waive its right to 

bargain during the term of an agreement, either pursuant to bargaining 

history, or by agreeing to something like a contractual ‘zipper clause[.]’” 

Id. at 568 (citation omitted). And they found that “[f]ederal agency 

employers who wish to avoid continuous bargaining during the term of 

an agreement are free, just as are their private sector counterparts, to 

negotiate contract provisions to ensure this result.” Id. at 570.

In its brief in NTEU 2005, NTEU urged at length that zipper 

clauses were mandatory bargaining subjects. Brief for Petitioner, Nat’l 

Treasury Emps. Union v. FLRA, D.C. Cir. No. 03-1351, 2004 WL 

960785, at 7-8. In NTEU’s view, “it is axiomatic in the private sector 

that proposals seeking ‘zipper’ or ‘reopener’ clauses, which define 

whether and to what extent there will be bargaining during the term of 

an agreement, are mandatory subjects of bargaining.” Id. at 8. 

USCA Case #20-1398 Document #1894952 Filed: 04/16/2021 Page 51 of 99
40

“Moreover, every indication is that there is a mandatory obligation to 

bargain over these types of clauses in the federal sector, too.” Id. 

In NTEU 2005, this Court also suggested that zipper clauses were 

required bargaining topics. NTEU 2005 rejected the Authority’s 

determination that NTEU’s “proposals to define the scope of the duty to 

bargain mid-term constitute only a permissive subject of bargaining.” 

NTEU 2005, 399 F.3d at 336. And it faulted the Authority for “fail[ing] 

to explain (or even to discuss) the relationship between the Union 

proposals at issue and both [Authority] and private sector precedent 

regarding zipper and reopener clauses.” Id. at 341. The Court noted 

that “the Union’s proposals are arguably more analogous to zipper 

clauses than they are to reopeners,” and cited NLRB precedent holding 

zipper clauses to be mandatory bargaining subjects. Id. at 343 (citing 

Tomco Commc’ns, Inc., 567 F.2d at 879). 

These statements would make little sense if the Statute directly 

addressed zipper clauses and foreclosed the conclusion that they are 

mandatory subjects of bargaining. Instead, they strongly suggest that 

proposals regarding zipper clauses, like all other proposals concerning 

“conditions of employment” that the Statute does not unambiguously 

USCA Case #20-1398 Document #1894952 Filed: 04/16/2021 Page 52 of 99
41

define as permissive subjects, are required bargaining topics. See 

NTEU 2009, 64 FLRA at 157.

The Unions assert that, “if the [Authority’s] ruling on the midterm 

bargaining right . . . is set aside, a zipper clause proposal would have to 

be considered a permissive subject of bargaining.” (Br. at 43.) In 

support, they cite AFGE 1983 and NTEU 2005. Both of those decisions, 

however, are incompatible with any argument that zipper clauses are 

permissive subjects only. 

In AFGE 1983, this Court considered whether the scope of a 

negotiated grievance procedure is a mandatory or permissive subject of 

bargaining under the Statute. The Statute provides that “any [CBA] 

shall provide procedures for the settlement of grievances[.]” 5 U.S.C. § 

7121(a)(1). It then says that “[a]ny [CBA] may exclude any matter from 

the application of the grievance procedures which are provided for in 

the agreement,” id. § 7121(a)(2) (emphasis added), and lists five 

categories of matters that must be excluded from a grievance procedure, 

id. § 7121(c). Based on those provisions, the union argued that any 

proposal to limit the scope of a CBA’s grievance procedure beyond the 

USCA Case #20-1398 Document #1894952 Filed: 04/16/2021 Page 53 of 99
42

five categories listed in § 7121(c) was a permissive subject only. AFGE 

1983, 712 F.2d at 644.

The Court rejected that argument. It found that § 7106 of the 

Statute, in dealing with management rights, “demonstrates that 

Congress knew how to write a provision defining permissive subjects of 

bargaining unambiguously.” Id. at 646. “Moreover, Congress linked 

the permissive subjects of bargaining to unilateral rights specifically 

vested in one party.” Id. 

In particular, the Court found that comparing § 7106 with § 7121, 

dealing with grievance procedures, was “telling.” Id. That is because 

“[§] 7106(a) explicitly designates certain itemized subjects as 

management rights,” while “[§] 7106(b)(1) explicitly permits negotiation 

‘at the election of the agency.’” Id. By contrast, § 7121(a) “does not 

speak of union rights; it describes in neutral terms a clause that must 

be included in every [CBA],” while § 7121(b), “again in neutral 

language, permits grievance procedure scope to be narrowed in ‘[a]ny 

[CBA].’” Id.

Thus, in assessing the Statute, this Court found that “[i]t is 

sensible to view all matters relating to conditions of employment as 

USCA Case #20-1398 Document #1894952 Filed: 04/16/2021 Page 54 of 99
43

mandatory subjects of bargaining unless the Act explicitly or by 

unambiguous implication vests in a party an unqualified ‘right.’” Id. at 

647 n.27 (emphasis added). “A ‘right’ is a logical candidate for a 

permissive subject of bargaining, one that a party may—but need not—

put on the bargaining table.” Id. “[S]ubjects falling within the ambit of 

[§] 7106 (which defines management rights) or [§§] 7102 and 7114 

(which define employees’ rights and unions’ rights of representation) 

should be ‘permissive’ subjects of bargaining; other ‘conditions of 

employment’ are appropriately ranked in the mandatory category.” Id.

In this case, Congress did not explicitly vest in unions an 

unqualified right to engage in midterm bargaining. Instead, as the 

Unions appear to concede (Br. at 23-24), and as the Supreme Court has 

expressly held, NFFE, 526 U.S. at 92, the Statute is silent on the topic. 

Nor does the Statute vest in unions a right to engage in midterm 

bargaining by “unambiguous implication”; once again, the Supreme 

Court in NFFE expressly found ambiguity regarding whether the 

Statute gave unions a right to engage in midterm bargaining. NFFE, 

526 U.S. at 98. 

USCA Case #20-1398 Document #1894952 Filed: 04/16/2021 Page 55 of 99
44

In NTEU 2005, this Court further indicated that midterm 

bargaining is not a “unilateral right.” The Court found that “[m]any 

provisions of the [Statute] confer benefits and impose obligations in 

varying degrees on labor and management.” NTEU 2005, 399 F.3d at 

339. “Not all of these provisions constitute ‘statutory rights’ that must 

be waived before they are negotiable.” Id. at 340. It noted that 

“[s]ubsequent decisions by the [Authority] have adopted the reasoning

of AFGE [1983] that limits permissive subjects of bargaining to 

‘unilateral rights specifically vested in one party.’” Id. (collecting cases).

NTEU 2005 considered the Authority’s decision in NTEU 2003

holding that proposals that would limit the agency’s ability to invoke 

the “covered by” defense were permissive subjects only. NTEU 2003, 59 

FLRA at 220. The Authority had reasoned that the “covered by” 

doctrine was a “statutory right” because it derives from “the Statute’s 

purposes of stability and repose[,]” and any proposal that requires a 

party to waive a statutory right is a permissive subject of bargaining. 

Id. 

This Court, however, rejected the Authority’s analysis. NTEU 

2005, 399 F.3d at 340-41. In its view, the issue was “not whether 

USCA Case #20-1398 Document #1894952 Filed: 04/16/2021 Page 56 of 99
45

[NTEU’s] proposals seek a ‘partial[ ] waive[r]’ of the ‘covered by’ 

doctrine or whether the latter ‘flows from the Statute.’” Id. at 341. 

Instead, the “dispositive question” was “whether the ‘covered by’ 

defense is a unilateral right explicitly or by unambiguous implication

conferred by the Statute.” Id. at 342, 341 (emphasis added).

In deciding that unions had a right to engage in midterm 

bargaining in Interior, the Authority similarly did not consider whether 

such bargaining was a “unilateral right” within the meaning of AFGE 

1983. Instead, Interior grounded the midterm bargaining right solely 

on policy considerations—that is, its conclusions that midterm 

bargaining “furthers Congress’s goal of promoting and strengthening 

collective bargaining in the federal workplace” and “will not result in 

significant costs or disruptions that would outweigh the benefits of such 

bargaining.” Interior, 56 FLRA at 52. That is very much like the 

Authority’s reasoning in NTEU 2003 that the “covered by” defense was 

a statutory right because it furthers “the Statute’s purposes of stability 

and repose.” NTEU 2003, 59 FLRA at 220. 

But AFGE 1983 and NTEU 2005 hold clearly that such 

generalized policy considerations are not enough to create a “unilateral 

USCA Case #20-1398 Document #1894952 Filed: 04/16/2021 Page 57 of 99
46

right.” Instead, the Statute must vest a unilateral right in a party 

either “explicitly or by unambiguous implication.’” NTEU 2005, 399 

F.3d at 340 (quoting AFGE 1983, 712 F.2d at 647 n.27.) 

In sum, the Unions fail to show that the Policy Statement runs 

afoul of Chevron step one. If anything, Chevron step one analysis 

forecloses the Unions’ position that zipper clauses are permissive 

subjects only.

II. The Policy Statement Satisfies Chevron Step Two

Moving to Chevron step two, the Unions fail to show that the 

Authority’s Policy Statement is arbitrary, capricious, or in any way 

unreasonable. 

A. Holding Zipper Clauses to Be Mandatory Subjects of 

Bargaining Is Consistent with the Statute’s Structure

The Policy Statement’s determination that zipper clauses are 

mandatory subjects of bargaining is consistent with the Statute’s 

overall structure, the “unilateral rights” doctrine, and both Authority 

and judicial precedent. (JA 76-77.) A determination that zipper clauses 

are merely permissive subjects, by contrast, would be inconsistent with 

the statutory scheme, contrary to the unilateral rights doctrine, and at 

odds with applicable precedent.

USCA Case #20-1398 Document #1894952 Filed: 04/16/2021 Page 58 of 99
47

Under the Statute, “all matters relating to conditions of 

employment” are presumed to be mandatory bargaining subjects 

“unless the Statute explicitly or by unambiguous implication vests in a 

party an unqualified, or ‘unilateral,’ right.” NTEU 2009, 64 FLRA at 

157 (citing NTEU 2005, 399 F.3d at 340 and AFGE 1983, 712 F.2d at 

646-47 & n.27, 649). The Authority has recognized that “[m]atters 

relating to the parties’ mid-term bargaining relationship plainly relate 

to conditions of employment.” Id. Thus, as the Policy Statement 

correctly noted, finding zipper clauses to be mandatory subjects of 

negotiation “is consistent with the Authority’s previous recognition that 

matters relating to the parties’ midterm-bargaining relationship plainly 

relate to conditions of employment.” (JA 76.)

Holding that zipper clauses are mandatory subjects of bargaining 

is also consistent with the Statute’s presumption “that all matters 

relating to conditions of employment are mandatory subjects of 

bargaining unless the text explicitly or by unambiguous implication 

vests in a party an unqualified, or ‘unilateral,’ right.” (Id. (citing NTEU 

2009, 64 FLRA at 157).) Authority and judicial precedent provide at 

USCA Case #20-1398 Document #1894952 Filed: 04/16/2021 Page 59 of 99
48

least three reasons why union-initiated midterm bargaining cannot be 

considered a unilateral right.

First, the Statute does not expressly or by unambiguous 

implication create a right to bargain midterm. The Supreme Court has 

squarely held that the Statute does not explicitly create a right to 

union-initiated midterm bargaining. NFFE, 526 U.S. at 92. And the 

Supreme Court, after exhausting traditional tools of statutory 

construction, found that the Statute does not grant unions a right to 

engage in midterm bargaining by unambiguous implication. Id. at 98. 

To the contrary, the Court found “ambiguity created by the Statute's 

use of general language that might, or might not, encompass various 

forms of midterm bargaining.” Id. 

NTEU 2009, which dismissed the argument that the “covered by” 

defense is a unilateral right, also requires rejecting the argument that 

midterm bargaining is a “unilateral right.” “Unlike provisions of the 

Statute that explicitly grant parties various rights, nothing in the 

Statute explicitly sets forth a right to raise a ‘covered by’ defense, or to 

decline to bargain mid-term over a proposal that would limit a party’s 

ability to raise such a defense.” NTEU 2009, 64 FLRA at 157. NTEU 

USCA Case #20-1398 Document #1894952 Filed: 04/16/2021 Page 60 of 99
49

2009 thus held that “Congress knew how to write a provision defining 

permissive subjects of bargaining unambiguously,” and had failed to do 

so with respect to the “covered-by” doctrine. Id. at 158. 

So too, the Authority correctly found in its Policy Statement that 

“the Statute does not, on its own, explicitly or by unambiguous 

implication vest either party with a unilateral right to engage in 

midterm bargaining.” (JA 76.) 

Second, any right to midterm bargaining is not “unqualified.” 

Instead, it is limited by the “covered by” doctrine, under which parties 

are not obligated to bargain over matters “covered by” the parties’ term 

agreement, as well as the doctrine of waiver. Interior, 56 FLRA at 53 

(“an agency is not required to bargain during the term of a [CBA] on 

matters that are ‘contained in or covered by’ an agreement” or “where 

the union has waived its right to bargain over the subject matter 

involved.”). The Supreme Court in NFFE made this same point, noting 

that “the D.C. Circuit’s analysis [in NTEU 1987] implicitly concedes the 

need to make at least some midterm bargaining distinctions, when it 

assumes that the midterm bargaining obligation does not extend to 

matters that are covered by the basic contract.” NFFE, 526 U.S. at 98.

USCA Case #20-1398 Document #1894952 Filed: 04/16/2021 Page 61 of 99
50

Third, any right to midterm bargaining is not “unilateral.” Like 

the “covered by” doctrine, the policies supporting the right to bargain 

midterm relate to “the parties’ mutual obligation to bargain, not 

unilateral rights.” NTEU 2009, 64 FLRA at 158. Indeed, NTEU 2009 

itself referred to “the mutual obligation to bargain mid-term.” Id. So 

too, in recognizing a right to bargain midterm, Interior emphasized the 

parties’ mutual interest in “cooperatively resolving disputes” and “more 

focused negotiations,” as well as the need to “maintain[] the mutuality 

of the bargaining obligation prescribed in the Statute.” Interior, 56 

FLRA at 51-52. Because the right to midterm bargaining recognized in 

Interior flows from “a mutual obligation to bargain,” it is not a 

“unilateral right specifically invested in one party.” Id., at 55 n.12; 

NTEU 2009, 64 FLRA at 157.

In sum, the Authority correctly held that, “because neither party 

would be required to waive a statutory right, any proposal concerning 

midterm bargaining would come within the default rule that all matters 

relating to conditions of employment are mandatory subjects of 

bargaining.” (JA 76-77.)

USCA Case #20-1398 Document #1894952 Filed: 04/16/2021 Page 62 of 99
51

The Unions do not offer any analysis that would undercut this 

conclusion, much less show it was unreasonable. Instead, they point to 

a passage from NTEU 1987 stating that “the statutory scheme protects 

governmental needs, not by restricting the circumstances of bargaining, 

but by limiting the areas that are subject to bargaining.” (Br. at 25 

(quoting NTEU 1987, 810 F. 2d at 301).) But the Authority was not 

required to specifically consider observations from a 33-year old judicial 

opinion that was overruled more than 20 years ago. (JA 73 n.14 (noting 

that NTEU 1987 was overruled by NFFE).) 

In addition, this passage does not speak to whether the parties 

themselves may “restrict[] the circumstances of bargaining,” or are 

required to bargain over proposals to do so. NTEU 1987, 810 F. 2d at 

301; compare IRS III, 838 F.2d at 568-70 (concurring statement of 

Edwards, J., joined by Silberman, J.) (noting that treating zipper 

clauses as mandatory subjects of bargaining is consistent with NTEU 

1987). Authority precedent, however, does speak directly to this 

question. It holds that “[m]atters relating to the parties’ mid-term 

bargaining relationship plainly relate to conditions of employment,” and 

thus come within the Statute’s broad “presumption that all matters 

USCA Case #20-1398 Document #1894952 Filed: 04/16/2021 Page 63 of 99
52

relating to conditions of employment are mandatory subjects of 

bargaining unless the Statute explicitly or by unambiguous implication 

vests in a party an unqualified, or ‘unilateral,’ right.” NTEU 2009, 64 

FLRA at 157.

Requiring the parties to engage in term negotiations regarding 

their midterm bargaining obligations is consistent with the Statute’s 

structure in another respect. As the Authority pointed out, the Statute 

explicitly sets forth an obligation engage in term negotiations. (JA 75.) 

“Indeed, in the long history of litigation over these issues, there has 

been universal agreement that the obligation to ‘meet and negotiate in 

good faith for the purposes of arriving at a collective[-]bargaining 

agreement’ compels bargaining over negotiable proposals for a term 

CBA.” (JA 75 n.32 (quoting 5 U.S.C. § 7114(a)(4).) 

The Statute does not, however, speak directly to whether its 

bargaining obligation extends to midterm supplements. NFFE, 526 

U.S. at 98. Indeed, four justices of the Supreme Court, along with the 

Fourth Circuit, found that the Statute expressly prohibited unioninitiated midterm bargaining. NFFE, 526 U.S. at 101-08 (O’Connor, J., 

dissenting); Energy, 106 F.3d at 1163. In light of that indeterminacy, it 

USCA Case #20-1398 Document #1894952 Filed: 04/16/2021 Page 64 of 99
53

was entirely consistent with the Statute’s structure to hold—as the 

Authority did—that “the Statute leaves midterm-bargaining obligations 

to the parties to resolve as part of their term negotiations.” (JA 75-76.) 

Under the Unions’ proffered alternative, by contrast, the parties 

would almost never comprehensively define their midterm bargaining 

obligations during term negotiations. While the parties might expand

their bargaining obligations via reopener provisions, requiring midterm 

bargaining over matters that were “covered by” the term agreement, see 

NTEU 2009, 64 FLRA at 158-59, only in the rarest of cases would they 

limit or otherwise define their midterm bargaining obligations. That is 

because, as NTEU proclaimed in its public comment, “NTEU has never 

agreed to a proposal that would eliminate its statutory right to midterm 

bargaining on topics not covered by the existing agreement.” (JA 47.) 

Further, NTEU “would never agree to such a proposal” if zipper clauses 

were not held to be mandatory subjects of bargaining. (Id. (emphasis 

added).) 

Thus, the Unions’ view would turn the Statute’s structure on its 

head. It would exalt the right to midterm negotiations, holding that 

unions could never be forced to waive this unwritten right despite the 

USCA Case #20-1398 Document #1894952 Filed: 04/16/2021 Page 65 of 99
54

fact that it appears nowhere in the Statute. At the same time, it would 

effectively deprive the parties of the ability to comprehensively define 

their midterm bargaining obligations during term negotiations—despite 

the fact that good-faith term bargaining is an express statutory 

obligation. See 5 U.S.C. § 7114(b)(1) (“[t]he duty of an agency and an 

exclusive representative to negotiate in good faith under subsection (a) 

of this section shall include the obligation . . . to approach the 

negotiations with a sincere resolve to reach a [CBA].”). 

The Unions’ skewed view of the Statute’s framework fails to make 

sense of it. By contrast, the Authority’s careful analysis in the Policy 

Statement respects the Statute’s structure by treating midterm 

bargaining obligations just like any other “condition of employment”—

as a mandatory subject for term negotiations. (JA 75-77.)

B. The Policy Statement Promotes the Statute’s 

Purposes

Again relying heavily on NTEU 1987, the Unions next contend 

that the Policy Statement is inconsistent with the Statute’s purposes of 

“promoting collective bargaining” and “equalizing the positions of labor 

and management at the bargaining table.” (Br. at 26-32.) These 

arguments are without merit.

USCA Case #20-1398 Document #1894952 Filed: 04/16/2021 Page 66 of 99
55

“Congress’s intent in enacting the [Statute] was to establish a 

collective bargaining regime in which agencies and unions would reach 

binding and stable [CBAs].” Internal Revenue Serv. v. FLRA, 963 F.2d 

429, 439 (D.C. Cir. 1992) (“IRS 1992”). “Stable and enforceable [CBAs] 

protect the interests of the agency and bargaining unit employees 

alike.” Id. at 439-40. And, “[t]o the extent that the parties are required 

to adhere to the specific conditions of employment mutually established 

in their agreement during the life of such agreement, stability at the 

work place is thereby fostered.” Navy, 962 F.2d at 59 (internal 

quotation marks omitted). 

Thus, Navy held that the parties can, in their term contract, 

define the circumstances under which “impact and implementation” 

bargaining may take place, and in so doing, partially or fully waive 

their right to engage in such bargaining. Id. at 58. “[W]here a matter 

that would otherwise be a mandatory subject of bargaining is ‘covered 

by’ or ‘contained in’ a [CBA], the parties are absolved of any further 

duty to bargain about that matter during the term of the agreement.” 

Id. at 53.

USCA Case #20-1398 Document #1894952 Filed: 04/16/2021 Page 67 of 99
56

So too in this case, the Statute’s broad pro-bargaining purpose—

and, in particular, its intent to foster contractual stability, reliance and 

repose—is furthered by requiring the parties to bargain over proposals 

to precisely define their midterm bargaining obligations. As the

Authority accurately observed, “requiring the parties to engage in 

collective bargaining over an additional topic” advances, rather than 

detracts from, the Statute’s purpose to promote collective bargaining. 

(JA 77 n. 47.) 

The D.C. Circuit too has held that the Statute’s purposes of 

“contractual stability and repose” are undermined, not furthered, by 

“requiring essentially endless bargaining.” Navy, 962 F.2d at 59. 

Indeed, “[s]table and enforceable [CBAs] . . . . provide a far more 

effective bulwark for protecting employees’ interests than do the 

relatively abstract statutory entitlements” championed by the Unions in 

this case. IRS 1992, 963 F.2d at 439-40. By insisting on the right to 

engage in midterm bargaining, but depriving the parties of the ability 

to define the scope of such bargaining, “the [Unions] guard[] the 

building blocks of collective bargaining at the expense of the edifice 

USCA Case #20-1398 Document #1894952 Filed: 04/16/2021 Page 68 of 99
57

itself”—reflecting an approach to collective bargaining that this Court 

has decisively rejected. Id. at 440.

Next, the Unions contend that the Authority’s Policy Statement is 

contrary to the Statute’s purpose of “equalizing the positions of labor 

and management at the bargaining table.” (Br. at 30.) Once again, the 

precise opposite is true. The Authority’s Policy Statement eliminates 

the arbitrary disparity that had developed in the Authority’s case law 

between reopener and zipper clauses, whereby only reopener clauses 

may be bargained to impasse. (JA 71-72, 74.) That is, before the 

Authority’s Policy Statement, parties could not bargain to impasse 

regarding “proposals that limit midterm bargaining”—zipper clauses—

and the Panel lacked jurisdiction impose such provisions on the parties. 

(JA 72.) However, the parties could bargain to impasse regarding 

“reopener proposals that broaden midterm bargaining”—reopener 

clauses—and the Panel could freely impose such provisions on the 

parties. (Id.) 

With its Policy Statement, the Authority corrected that arbitrary 

disparity and clarified that “all proposals concerning midtermbargaining obligations (including zipper clauses) are mandatory

USCA Case #20-1398 Document #1894952 Filed: 04/16/2021 Page 69 of 99
58

subjects for negotiation that may be bargained to impasse. (JA 78.) As 

the Authority noted, there is simply no reason why reopener clauses 

should be treated as mandatory subjects of bargaining but zipper 

clauses should not. (JA 77.) Recognizing both as mandatory bargaining 

subjects therefore “equaliz[es] the positions of labor and management at 

the bargaining table” by eliminating a fundamental disparity between 

labor and management regarding midterm bargaining obligations. (Br. 

at 30.) 

For example, just as “adding a reopener clause to a CBA may 

allow the parties to expedite bargaining by presently avoiding topics of 

little immediate concern that could unnecessarily and inefficiently 

broaden and prolong term negotiations,” so too “adding a zipper clause 

to a CBA may provide management with an assurance that its other 

contractual commitments will not be interpreted as imposing an 

ongoing midterm-bargaining obligation.” (JA 77 (internal quotation 

marks omitted).) And requiring bargaining over both zipper and 

reopener clauses allows management negotiators to “have greater 

confidence that, if they agree to union-favored proposals that recognize 

additional midterm bargaining obligations for the agency, then those 

USCA Case #20-1398 Document #1894952 Filed: 04/16/2021 Page 70 of 99
59

obligations can be counterbalanced with an appropriately tailored 

zipper clause” and thus promotes focused, efficient, and equitable 

collective bargaining. (Id.)

Notably, the Unions make no effort to justify the disparate 

treatment of reopener clauses versus zipper clauses. No previous 

Authority decision has attempted to do so either. Instead, before 

issuing the Policy Statement, the Authority had repeatedly ducked the 

question. NTEU 2009, 64 FLRA at 159 n.10; Interior, 56 FLRA at 54. 

The Unions assume that requiring bargaining over zipper clauses 

would eliminate the ability of unions to engage in midterm bargaining. 

(Br. at 27-28). But, as the Authority noted, that simply is not true. (JA 

78 & n.50.) Agencies must still bargain regarding the “impact and 

implementation” of management decisions that alter conditions of 

employment during a CBA’s term. (JA 76 n.39.) And unions may 

bargain to impasse over reopener or zipper clauses, or a combination 

thereof, that allow for broad midterm bargaining over problems that are 

“unforeseen and unforeseeable at the time of term negotiations.” (JA 78 

& n.50; compare Br. at 34.) 

USCA Case #20-1398 Document #1894952 Filed: 04/16/2021 Page 71 of 99
60

And, even apart from any reopener provision, parties may always 

“mutually agree[] to reopen their existing agreements to address the 

current circumstances.” (Id.) Indeed, at this very moment, agencies 

across the federal government are engaged in midterm bargaining over 

a wide array of subjects at the President’s direction. See OPM, 

Guidance for Implementation of Executive Order 14003 -Protecting the 

Federal Workforce (Mar. 5, 2021)3 (directing the heads of agencies to 

reopen CBAs and engage in midterm bargaining on numerous issues).

C. The Policy Statement Is Supported by Private-Sector

Precedent

Once again echoing NTEU 1987, the Unions next contend that the 

Authority should have “seriously considered” private-sector precedent 

regarding midterm bargaining, as reflected in NLRB v. Jacobs 

Manufacturing Co., 196 F.2d 680 (2d Cir. 1952). (Br. at 34 (quoting 

NTEU 1987, 810 F.2d at 300).) But, as Judges Edwards and Silberman 

observed in rejecting a similar argument, “the principle enunciated in 

Jacobs Manufacturing Co. does not impose an absolute requirement 

 

3Available at https://www.chcoc.gov/sites/default/files/3-5-

2021%20Guidance%20Memo%20for%20Implementation%20of%20EO%

2014003%20Protecting%20the%20Federal%20Workforce.pdf

USCA Case #20-1398 Document #1894952 Filed: 04/16/2021 Page 72 of 99
61

that parties to a [CBA] always must negotiate with respect to 

mandatory subjects of bargaining during the term of an agreement.” 

IRS III, 838 F.2d at 568 (concurring statement of Edwards, J., joined by 

Silberman, J.). On the contrary, “literally scores of cases from the 

private sector hold[] that a union may waive its right to bargain during 

the term of an agreement, either pursuant to bargaining history, or by 

agreeing to something like a contractual ‘zipper clause.’” Id. Thus, as 

Judges Edwards and Silberman correctly concluded, the argument that 

zipper clauses are permissive subjects only in the federal-sector is 

“utterly specious.” Id. at 570.

Indeed, longstanding NLRB precedent holds that zipper clauses 

are mandatory subjects that may be bargained to impasse. Tomco 

Commc’ns, Inc., 567 F.2d at 879, Litton Sys., 300 NLRB at 327–28; 

Toledo Blade Co., 295 NLRB at 627; cf. MATTHEW BENDER & CO., INC., 1

DRAFTING THE UNION CONTRACT § 19.02 (2020) (“it appears safe to 

assume that a zipper clause is a mandatory subject of bargaining.”). 

NTEU itself has acknowledged that “it is axiomatic in the private sector 

that proposals seeking ‘zipper’ or ‘reopener’ clauses, which define 

whether and to what extent there will be bargaining during the term of 

USCA Case #20-1398 Document #1894952 Filed: 04/16/2021 Page 73 of 99
62

an agreement, are mandatory subjects of bargaining.” Brief for 

Petitioner, Nat’l Treasury Emps. Union v. FLRA, D.C. Cir. No. 03-1351, 

2004 WL 960785, at 8. 

Thus, the Unions’ argument that the Policy Statement is contrary 

to private-sector precedent is incorrect. Instead, the precise opposite is 

true—holding that zipper clauses are permissive subjects only would 

contradict private-sector precedent.

D. The Authority Reasonably Explained Why It Was 

Departing from Interior 

The Unions next accuse the Authority of failing to “sensibly 

explain its departure” from Interior. (Br. at 38.) But Interior did not 

consider whether midterm bargaining was a “unilateral right 

specifically vested in one party” within the meaning of AFGE 1983 and 

NTEU 2005. Nor did Interior consider whether zipper clauses were 

mandatory or permissive bargaining subjects. On the contrary, it 

expressly declined to do so. Interior, 56 FLRA at 54.

This Court could scarcely have been clearer in stating that the 

“dispositive question” as to whether zipper clauses are permissive or 

mandatory subjects of bargaining “is not whether the proposal involves 

a ‘statutory right’ but whether that right is ‘unilateral.’” NTEU 2005,

USCA Case #20-1398 Document #1894952 Filed: 04/16/2021 Page 74 of 99
63

399 F.3d at 342 (emphasis added). The Authority, unlike the Unions, 

thus correctly recognized that the pertinent question is not whether 

midterm bargaining “flows from the Statute,” id at 341, but whether the 

Statute’s “text explicitly or by unambiguous implication vests in a party 

an unqualified, or ‘unilateral,’ right” to engage in midterm bargaining. 

(JA 76.)

The Authority correctly determined that Interior’s analysis was 

insufficient to establish midterm bargaining as a “unilateral right.” (JA 

75.) While Interior had found that the Statute does not distinguish 

between midterm and term bargaining obligations, the Authority noted 

a key distinction between the two: the mutual obligation to engage in 

term bargaining is clearly established in the Statute, while the mutual 

obligation to bargain midterm is not. (Id.) The Authority rightly 

observed that there is “universal agreement that the obligation to ‘meet 

and negotiate in good faith for the purposes of arriving at a [CBA]’ 

compels bargaining over negotiable proposals for a term CBA.” (Id. 

n.32 (quoting 5 U.S.C. § 7114(a)(4).) In sharp contrast, NFFE had 

squarely held that the Statute is ambiguous as to whether it requires 

union-initiated midterm bargaining. (Id. (citing NFFE, 526 U.S. at 

USCA Case #20-1398 Document #1894952 Filed: 04/16/2021 Page 75 of 99
64

98).) Indeed, as noted supra, the general policy considerations 

regarding mutual bargaining obligations that Interior relied upon fall 

well short of establishing midterm bargaining as a “unilateral right.” 

NTEU 2009, 64 FLRA at 157-58; compare Interior, 56 FLRA at 51-52. 

Thus, it would be contrary to Authority and judicial precedent to 

treat midterm bargaining as a “unilateral statutory right” when the 

Statute says nothing about it. (JA 75-76.) 

E. The Authority Properly Found Zipper Clauses to Be 

An “Appropriate Technique” to Assist in Negotiations

In its Policy Statement, the Authority found further support for 

treating zipper clauses as mandatory subjects in § 7114(a)(4) of the 

Statute, which says that the parties “may determine appropriate 

techniques, consistent with the provisions” of § 7119—concerning 

bargaining impasses—“to assist in any negotiation.” (JA 77). 

The Unions contend that the Authority found zipper clauses an 

“appropriate technique” merely because they could serve as a 

“bargaining chip.” (Br. at 44.) But that was not the Authority’s 

rationale. Instead, the Authority held that zipper clauses were an 

“appropriate technique” because they would help the parties precisely 

define the contours of their midterm bargaining obligations and, in so 

USCA Case #20-1398 Document #1894952 Filed: 04/16/2021 Page 76 of 99
65

doing, would permit them to decide when to address certain topics of 

negotiation—i.e., during term negotiations, during midterm bargaining, 

or some combination thereof. (JA 77.) Requiring the parties to 

comprehensively define the scope and timing of midterm negotiations 

promotes efficient and focused bargaining, and “zipper clauses” are an 

“appropriate”—indeed, necessary—technique to create such efficiencies. 

(Id.; see also JA 4.) The Unions have no response to this analysis.

III. After Avoiding the Issue for Two Decades, the Authority 

Reasonably Decided to Issue a Policy Statement Clarifying 

That Zipper Clauses Are Mandatory Subjects of Bargaining

Finally, the Unions contend that the Authority failed to 

adequately explain why it was issuing a policy statement in the first 

place. (Br. 38-40.) This argument is incorrect as well.

The Authority’s decision to exercise its statutory power to “provide 

leadership in establishing policies and guidance relating to matters 

under” the Statute, 5 U.S.C. § 7105(a)(1), is within the Authority’s 

sound discretion. After all, it is “[t]he Authority” that is “responsible for 

carrying out the purpose of” the Statute. Id.

The Authority has issued regulations listing six factors that guide 

it in deciding whether to issue a policy statement. See 5 C.F.R. 

USCA Case #20-1398 Document #1894952 Filed: 04/16/2021 Page 77 of 99
66

§ 2427.5. Those regulations do not specify the weight of any particular 

factor or the method of balancing various factors against one another. 

Id. This Court defers to the Authority’s interpretation and application 

of its own ambiguous regulations. Nat’l Lifeline Ass’n v. Fed. Com. 

Comm’n, 983 F.3d 498, 507 (D.C. Cir. 2020).

As the Authority observed (JA 74-75), its regulations suggest that 

issuing a general statement of policy or guidance is appropriate where 

“resolution of the question presented would have general applicability 

under the” Statute, and where “the question currently confronts parties 

in the context of a labor-management relationship.” See 5 C.F.R. 

§ 2427.5(c)-(d). 

The Authority correctly noted that the question of whether zipper 

clauses are mandatory subjects of bargaining “has persisted for decades 

without a clear answer.” (JA 74.) Resolving this question, the 

Authority found, would “provide guidance with ‘general applicability’ 

under the Statute on a matter that currently confronts parties in the 

context of a labor-management relationship[.]” (Id. 74-75 (quoting 5 

C.F.R. § 2427.5(c)).) The Unions present no basis for questioning those 

USCA Case #20-1398 Document #1894952 Filed: 04/16/2021 Page 78 of 99
67

determinations; indeed, they admit both points in asserting their own 

standing to challenge the Policy Statement. (Br. at 19-21.) 

Instead, the Unions point to the Authority’s decision in November 

2019 not to issue a policy statement confined solely to midterm 

bargaining. (Br. at 38 (citing U.S. Office of Personnel Management, 71 

FLRA 423 (2019)).) But, as the Unions admit, that request involved a 

“separate . . . issue” from whether zipper clauses are mandatory 

subjects of negotiation. (Id.) 

In addition, the Authority provided a detailed explanation for why 

it chose to issue a Policy Statement regarding zipper clauses where it 

had declined to issue one regarding midterm bargaining in general. 

The Authority noted that “the previous request did not concern zipper 

clauses, and the precedent on which the Authority based its previous 

denial [NTEU 2009 and Interior] did not resolve whether zipper clauses 

were within the duty to bargain.” (JA 76 n.36.) “In the request at issue 

here,” by contrast, “the question of the parties’ obligations to negotiate 

zipper clauses has been squarely raised.” (Id.) “And because those 

obligations depend, in some respects, on whether the Statute itself 

compels midterm bargaining, we find it necessary to address the 

USCA Case #20-1398 Document #1894952 Filed: 04/16/2021 Page 79 of 99
68

Statute’s midterm-bargaining requirements in order to properly 

evaluate whether zipper clauses are mandatory subjects of bargaining.” 

(Id.) 

The Unions contend that this explanation “had nothing to do with 

the regulatory construct governing requests for general statements of 

policy or guidance” (Br. at 40), but that simply is not true. The 

Authority correctly noted that its precedent—NTEU 2009 and Interior 

in particular—provided guidance on the general duty to bargain 

midterm, but they “did not resolve whether zipper clauses were within 

the duty to bargain.” (JA 76 n.36.) Indeed, both of those decisions 

expressly declined to consider whether zipper clauses were mandatory 

subjects of bargaining. NTEU 2009, 64 FLRA at 159 n.10; Interior, 56 

FLRA at 54. Thus, the Authority did not “depart from its regulatory 

conclusion[] in OPM” in issuing the Policy Statement. (Br. at 40; 

compare U.S. Office of Personnel Management, 71 FLRA at 423.) 

Further, the Unions provide no basis for challenging the 

Authority’s conclusion that it was “necessary to address the Statute’s 

midterm-bargaining requirements in order to properly evaluate 

whether zipper clauses are mandatory subjects of bargaining” (JA 76 

USCA Case #20-1398 Document #1894952 Filed: 04/16/2021 Page 80 of 99
69

n.36), nor could they. NTEU itself analyzed the midterm-bargaining 

right in arguing, in its public comment, that zipper clauses were 

permissive subjects only. (JA 43-44.) And the Supreme Court in NFFE, 

the D.C. Circuit in NTEU 2005, and the Authority in Interior and 

NTEU 2009 all found it necessary to consider the required scope of 

midterm bargaining under the Statute in order to properly evaluate 

whether proposals to expand or narrow such bargaining were 

mandatory subjects of negotiation. See NFFE, 526 U.S. at 99-101; 

NTEU 2005, 399 F.3d at 340-41; Interior, 56 FLRA at 50; NTEU 2009, 

64 FLRA at 157. 

CONCLUSION

For the foregoing reasons, the Authority respectfully requests that 

the Court deny the Petitions for Review. 

USCA Case #20-1398 Document #1894952 Filed: 04/16/2021 Page 81 of 99
70

Respectfully submitted,

/s/Noah Peters

NOAH PETERS

Solicitor

REBECCA J. OSBORNE

Deputy Solicitor

SARAH C. BLACKADAR

Attorney

FEDERAL LABOR RELATIONS 

AUTHORITY

1400 K Street, NW

Washington, DC 20424

(202) 218-7908

April 16, 2021

USCA Case #20-1398 Document #1894952 Filed: 04/16/2021 Page 82 of 99
71

FED. R. APP. P. RULE 32(A) CERTIFICATION

Pursuant to Fed. R. App. P. 32(a)(7)(B)(i), I hereby certify that this 

brief is double-spaced (except for extended quotations, headings, and 

footnotes) and is proportionally spaced, using Century Schoolbook font, 

14-point type. Based on a word count of my word processing system, 

this brief contains fewer than 13,000 words. It contains 12,900 words 

excluding exempt material. 

/s/ Noah Peters

Noah Peters

Solicitor 

Federal Labor Relations Authority

CERTIFICATE OF SERVICE

I hereby certify that on this 16th day of April, 2021, I 

electronically filed the foregoing with the Clerk of the Court for the 

United States Court of Appeals for the District of Columbia Circuit by 

using the CM/ECF system. I also certify that the foregoing document is 

being served on counsel of record and that service will be accomplished 

by the CM/ECF system. 

/s/ Noah Peters

Noah Peters

Solicitor 

Federal Labor Relations Authority

USCA Case #20-1398 Document #1894952 Filed: 04/16/2021 Page 83 of 99
ADDENDUM

Relevant Statutes and Regulations

USCA Case #20-1398 Document #1894952 Filed: 04/16/2021 Page 84 of 99
2

TABLE OF CONTENTS

Authority Page

U.S. Const., art. III, § 1 ..............................................................................3

5 U.S.C. § 7101(b).......................................................................................3

5 U.S.C. § 7105(a).......................................................................................3

5 U.S.C. § 7106 ...........................................................................................4

5 U.S.C. § 7114(a), (b).................................................................................5

5 U.S.C. § 7119(b), (c) .................................................................................6

5 U.S.C. § 7121 ...........................................................................................8

5 U.S.C. § 7123(a).....................................................................................12

29 U.S.C. § 158(d).....................................................................................12

5 C.F.R. § 2427.2(a) ..................................................................................14

5 C.F.R. § 2427.4.......................................................................................15

5 C.F.R. § 2427.5.......................................................................................15

USCA Case #20-1398 Document #1894952 Filed: 04/16/2021 Page 85 of 99
3

U.S. Const., art. III, § 1

Judicial Power, Tenure and Compensation

Section 1. The judicial Power of the United States, shall be vested in 

one supreme Court, and in such inferior Courts as the Congress may 

from time to time ordain and establish. The Judges, both of the 

supreme and inferior Courts, shall hold their Offices during good 

Behaviour, and shall, at stated Times, receive for their Services, a 

Compensation, which shall not be diminished during their Continuance 

in Office.

5 U.S.C. § 7101(b)

Findings and purpose

(b) It is the purpose of this chapter to prescribe certain rights and 

obligations of the employees of the Federal Government and to establish 

procedures which are designed to meet the special requirements and 

needs of the Government. The provisions of this chapter should be 

interpreted in a manner consistent with the requirement of an effective 

and efficient Government.

5 U.S.C. § 7105(a)

Powers and Duties of the Authority

(a)(1) The Authority shall provide leadership in establishing policies 

and guidance relating to matters under this chapter, and, except as 

otherwise provided, shall be responsible for carrying out the purpose of 

this chapter.

(2) The Authority shall, to the extent provided in this chapter and in 

accordance with regulations prescribed by the Authority--

(A) determine the appropriateness of units for labor organization 

representation under section 7112 of this title;

(B) supervise or conduct elections to determine whether a labor 

organization has been selected as an exclusive representative by a 

majority of the employees in an appropriate unit and otherwise 

USCA Case #20-1398 Document #1894952 Filed: 04/16/2021 Page 86 of 99
4

administer the provisions of section 7111 of this title relating to 

the according of exclusive recognition to labor organizations;

(C) prescribe criteria and resolve issues relating to the granting of 

national consultation rights under section 7113 of this title;

(D) prescribe criteria and resolve issues relating to determining 

compelling need for agency rules or regulations under section 

7117(b) of this title;

(E) resolves issues relating to the duty to bargain in good faith 

under section 7117(c) of this title;

(F) prescribe criteria relating to the granting of consultation rights 

with respect to conditions of employment under section 7117(d) of 

this title;

(G) conduct hearings and resolve complaints of unfair labor 

practices under section 7118 of this title;

(H) resolve exceptions to arbitrator's awards under section 7122 of 

this title; and

(I) take such other actions as are necessary and appropriate to 

effectively administer the provisions of this chapter.

5 U.S.C. § 7106

Management Rights

(a) Subject to subsection (b) of this section, nothing in this chapter shall 

affect the authority of any management official of any agency--

(1) to determine the mission, budget, organization, number of 

employees, and internal security practices of the agency; and

(2) in accordance with applicable laws--

(A) to hire, assign, direct, layoff, and retain employees in the 

agency, or to suspend, remove, reduce in grade or pay, or 

take other disciplinary action against such employees;

USCA Case #20-1398 Document #1894952 Filed: 04/16/2021 Page 87 of 99
5

(B) to assign work, to make determinations with respect to 

contracting out, and to determine the personnel by which 

agency operations shall be conducted;

(C) with respect to filling positions, to make selections for 

appointments from--

(i) among properly ranked and certified candidates for 

promotion; or

(ii) any other appropriate source; and

(D) to take whatever actions may be necessary to carry out 

the agency mission during emergencies.

(b) Nothing in this section shall preclude any agency and any labor 

organization from negotiating--

(1) at the election of the agency, on the numbers, types, and 

grades of employees or positions assigned to any organizational 

subdivision, work project, or tour of duty, or on the technology, 

methods, and means of performing work;

(2) procedures which management officials of the agency will 

observe in exercising any authority under this section; or

(3) appropriate arrangements for employees adversely affected by 

the exercise of any authority under this section by such 

management officials.

5 U.S.C. § 7114(a)(4), (b)

Representation Rights and Duties

(a)(4) Any agency and any exclusive representative in any appropriate 

unit in the agency, through appropriate representatives, shall meet and 

negotiate in good faith for the purposes of arriving at a collective 

bargaining agreement. In addition, the agency and the exclusive 

representative may determine appropriate techniques, consistent with 

the provisions of section 7119 of this title, to assist in any negotiation.

(b) The duty of an agency and an exclusive representative to negotiate 

in good faith under subsection (a) of this section shall include the 

obligation--

USCA Case #20-1398 Document #1894952 Filed: 04/16/2021 Page 88 of 99
6

(1) to approach the negotiations with a sincere resolve to reach a 

collective bargaining agreement;

(2) to be represented at the negotiations by duly authorized 

representatives prepared to discuss and negotiate on any 

condition of employment;

(3) to meet at reasonable times and convenient places as 

frequently as may be necessary, and to avoid unnecessary delays;

(4) in the case of an agency, to furnish to the exclusive 

representative involved, or its authorized representative, upon 

request and, to the extent not prohibited by law, data--

(A) which is normally maintained by the agency in the 

regular course of business;

(B) which is reasonably available and necessary for full and 

proper discussion, understanding, and negotiation of 

subjects within the scope of collective bargaining; and

(C) which does not constitute guidance, advice, counsel, or 

training provided for management officials or supervisors, 

relating to collective bargaining; and

(5) if agreement is reached, to execute on the request of any party 

to the negotiation a written document embodying the agreed 

terms, and to take such steps as are necessary to implement such 

agreement.

5 U.S.C. § 7119(b), (c)

Negotiation Impasses; Federal Service Impasses Panel

(b) If voluntary arrangements, including the services of the Federal 

Mediation and Conciliation Service or any other third-party mediation, 

fail to resolve a negotiation impasse--

(1) either party may request the Federal Service Impasses Panel 

to consider the matter, or

(2) the parties may agree to adopt a procedure for binding 

arbitration of the negotiation impasse, but only if the procedure is 

approved by the Panel.

USCA Case #20-1398 Document #1894952 Filed: 04/16/2021 Page 89 of 99
7

(c)(1) The Federal Service Impasses Panel is an entity within the 

Authority, the function of which is to provide assistance in resolving 

negotiation impasses between agencies and exclusive representatives.

(2) The Panel shall be composed of a Chairman and at least six 

other members, who shall be appointed by the President, solely on 

the basis of fitness to perform the duties and functions involved, 

from among individuals who are familiar with Government 

operations and knowledgeable in labor-management relations.

(3) Of the original members of the Panel, 2 members shall be 

appointed for a term of 1 year, 2 members shall be appointed for a 

term of 3 years, and the Chairman and the remaining members 

shall be appointed for a term of 5 years. Thereafter each member 

shall be appointed for a term of 5 years, except that an individual 

chosen to fill a vacancy shall be appointed for the unexpired term 

of the member replaced. Any member of the Panel may be 

removed by the President.

(4) The Panel may appoint an Executive Director and any other 

individuals it may from time to time find necessary for the proper 

performance of its duties. Each member of the Panel who is not an 

employee (as defined in section 2105 of this title) is entitled to pay 

at a rate equal to the daily equivalent of the maximum annual 

rate of basic pay then currently paid under the General Schedule 

for each day he is engaged in the performance of official business 

of the Panel, including travel time, and is entitled to travel 

expenses as provided under section 5703 of this title.

(5)(A) The Panel or its designee shall promptly investigate any 

impasse presented to it under subsection (b) of this section. The 

Panel shall consider the impasse and shall either--

(i) recommend to the parties procedures for the 

resolution of the impasse; or

(ii) assist the parties in resolving the impasse through 

whatever methods and procedures, including 

factfinding and recommendations, it may consider 

appropriate to accomplish the purpose of this section.

USCA Case #20-1398 Document #1894952 Filed: 04/16/2021 Page 90 of 99
8

(B) If the parties do not arrive at a settlement after 

assistance by the Panel under subparagraph (A) of this 

paragraph, the Panel may--

(i) hold hearings;

(ii) administer oaths, take the testimony or deposition 

of any person under oath, and issue subpoenas as 

provided in section 7132 of this title; and

(iii) take whatever action is necessary and not 

inconsistent with this chapter to resolve the impasse.

(C) Notice of any final action of the Panel under this section 

shall be promptly served upon the parties, and the action 

shall be binding on such parties during the term of the 

agreement, unless the parties agree otherwise.

5 U.S.C. § 7121

Grievance Procedures

(a)(1) Except as provided in paragraph (2) of this subsection, any 

collective bargaining agreement shall provide procedures for the 

settlement of grievances, including questions of arbitrability. Except as 

provided in subsections (d), (e), and (g) of this section, the procedures 

shall be the exclusive administrative procedures for resolving 

grievances which fall within its coverage.

(a)(2) Any collective bargaining agreement may exclude any matter 

from the application of the grievance procedures which are provided for 

in the agreement.

(b)(1) Any negotiated grievance procedure referred to in subsection (a) 

of this section shall--

(A) be fair and simple,

(B) provide for expeditious processing, and

(C) include procedures that--

(i) assure an exclusive representative the right, in its own 

behalf or on behalf of any employee in the unit represented 

USCA Case #20-1398 Document #1894952 Filed: 04/16/2021 Page 91 of 99
9

by the exclusive representative, to present and process 

grievances;

(ii) assure such an employee the right to present a grievance 

on the employee's own behalf, and assure the exclusive 

representative the right to be present during the grievance 

proceeding; and

(iii) provide that any grievance not satisfactorily settled 

under the negotiated grievance procedure shall be subject to 

binding arbitration which may be invoked by either the 

exclusive representative or the agency.

(2)(A) The provisions of a negotiated grievance procedure providing for 

binding arbitration in accordance with paragraph (1)(C)(iii) shall, if or 

to the extent that an alleged prohibited personnel practice is involved, 

allow the arbitrator to order--

(i) a stay of any personnel action in a manner similar to the 

manner described in section 1221(c) with respect to the 

Merit Systems Protection Board; and

(ii) the taking, by an agency, of any disciplinary action 

identified under section 1215(a)(3) that is otherwise within 

the authority of such agency to take.

(B) Any employee who is the subject of any disciplinary action ordered 

under subparagraph (A)(ii) may appeal such action to the same extent 

and in the same manner as if the agency had taken the disciplinary 

action absent arbitration.

(c) The preceding subsections of this section shall not apply with respect 

to any grievance concerning--

(1) any claimed violation of subchapter III of chapter 73 of this 

title (relating to prohibited political activities);

(2) retirement, life insurance, or health insurance;

(3) a suspension or removal under section 7532 of this title;

(4) any examination, certification, or appointment; or

USCA Case #20-1398 Document #1894952 Filed: 04/16/2021 Page 92 of 99
10

(5) the classification of any position which does not result in the 

reduction in grade or pay of an employee.

(d) An aggrieved employee affected by a prohibited personnel practice 

under section 2302(b)(1) of this title which also falls under the coverage 

of the negotiated grievance procedure may raise the matter under a 

statutory procedure or the negotiated procedure, but not both. An 

employee shall be deemed to have exercised his option under this 

subsection to raise the matter under either a statutory procedure or the 

negotiated procedure at such time as the employee timely initiates an 

action under the applicable statutory procedure or timely files a 

grievance in writing, in accordance with the provisions of the parties’ 

negotiated procedure, whichever event occurs first. Selection of the 

negotiated procedure in no manner prejudices the right of an aggrieved 

employee to request the Merit Systems Protection Board to review the 

final decision pursuant to section 7702 of this title in the case of any 

personnel action that could have been appealed to the Board, or, where 

applicable, to request the Equal Employment Opportunity Commission 

to review a final decision in any other matter involving a complaint of 

discrimination of the type prohibited by any law administered by the 

Equal Employment Opportunity Commission.

(e)(1) Matters covered under sections 4303 and 7512 of this title which 

also fall within the coverage of the negotiated grievance procedure may, 

in the discretion of the aggrieved employee, be raised either under the 

appellate procedures of section 7701 of this title or under the negotiated 

grievance procedure, but not both. Similar matters which arise under 

other personnel systems applicable to employees covered by this chapter 

may, in the discretion of the aggrieved employee, be raised either under 

the appellate procedures, if any, applicable to those matters, or under 

the negotiated grievance procedure, but not both. An employee shall be 

deemed to have exercised his option under this subsection to raise a 

matter either under the applicable appellate procedures or under the 

negotiated grievance procedure at such time as the employee timely 

files a notice of appeal under the applicable appellate procedures or 

timely files a grievance in writing in accordance with the provisions of 

the parties' negotiated grievance procedure, whichever event occurs 

first.

USCA Case #20-1398 Document #1894952 Filed: 04/16/2021 Page 93 of 99
11

(2) In matters covered under sections 4303 and 7512 of this title which 

have been raised under the negotiated grievance procedure in 

accordance with this section, an arbitrator shall be governed by section 

7701(c)(1) of this title, as applicable.

(f) In matters covered under sections 4303 and 7512 of this title which 

have been raised under the negotiated grievance procedure in 

accordance with this section, section 7703 of this title pertaining to 

judicial review shall apply to the award of an arbitrator in the same 

manner and under the same conditions as if the matter had been 

decided by the Board. In matters similar to those covered under sections 

4303 and 7512 of this title which arise under other personnel systems 

and which an aggrieved employee has raised under the negotiated 

grievance procedure, judicial review of an arbitrator's award may be 

obtained in the same manner and on the same basis as could be 

obtained of a final decision in such matters raised under applicable 

appellate procedures.

(g)(1) This subsection applies with respect to a prohibited personnel 

practice other than a prohibited personnel practice to which subsection 

(d) applies.

(2) An aggrieved employee affected by a prohibited personnel practice 

described in paragraph (1) may elect not more than one of the remedies 

described in paragraph (3) with respect thereto. For purposes of the 

preceding sentence, a determination as to whether a particular remedy 

has been elected shall be made as set forth under paragraph (4).

(3) The remedies described in this paragraph are as follows:

(A) An appeal to the Merit Systems Protection Board under 

section 7701.

(B) A negotiated grievance procedure under this section.

(C) Procedures for seeking corrective action under subchapters II 

and III of chapter 12.

(4) For the purpose of this subsection, a person shall be considered to 

have elected--

USCA Case #20-1398 Document #1894952 Filed: 04/16/2021 Page 94 of 99
12

(A) the remedy described in paragraph (3)(A) if such person has 

timely filed a notice of appeal under the applicable appellate 

procedures;

(B) the remedy described in paragraph (3)(B) if such person has 

timely filed a grievance in writing, in accordance with the 

provisions of the parties' negotiated procedure; or

(C) the remedy described in paragraph (3)(C) if such person has 

sought corrective action from the Office of Special Counsel by 

making an allegation under section 1214(a)(1).

(h) Settlements and awards under this chapter shall be subject to the 

limitations in section 5596(b)(4) of this title.

5 U.S.C. § 7123(a)

Judicial review; Enforcement

(a) Any person aggrieved by any final order of the Authority other than 

an order under--

(1) section 7122 of this title (involving an award by an arbitrator), 

unless the order involves an unfair labor practice under section 

7118 of this title, or 

(2) section 7112 of this title (involving an appropriate unit 

determination), 

may, during the 60-day period beginning on the date on which the order 

was issued, institute an action for judicial review of the Authority's 

order in the United States court of appeals in the circuit in which the 

person resides or transacts business or in the United States Court of 

Appeals for the District of Columbia.

29 U.S.C. § 158(d)

Unfair Labor Practices

(d) Obligation to bargain collectively

USCA Case #20-1398 Document #1894952 Filed: 04/16/2021 Page 95 of 99
13

For the purposes of this section, to bargain collectively is the 

performance of the mutual obligation of the employer and the 

representative of the employees to meet at reasonable times and confer 

in good faith with respect to wages, hours, and other terms and 

conditions of employment, or the negotiation of an agreement, or any 

question arising thereunder, and the execution of a written contract 

incorporating any agreement reached if requested by either party, but 

such obligation does not compel either party to agree to a proposal or 

require the making of a concession: Provided, That where there is in 

effect a collective-bargaining contract covering employees in an industry 

affecting commerce, the duty to bargain collectively shall also mean 

that no party to such contract shall terminate or modify such contract, 

unless the party desiring such termination or modification--

(1) serves a written notice upon the other party to the contract of 

the proposed termination or modification sixty days prior to the 

expiration date thereof, or in the event such contract contains no 

expiration date, sixty days prior to the time it is proposed to make 

such termination or modification;

(2) offers to meet and confer with the other party for the purpose 

of negotiating a new contract or a contract containing the 

proposed modifications;

(3) notifies the Federal Mediation and Conciliation Service within 

thirty days after such notice of the existence of a dispute, and 

simultaneously therewith notifies any State or Territorial agency 

established to mediate and conciliate disputes within the State or 

Territory where the dispute occurred, provided no agreement has 

been reached by that time; and

(4) continues in full force and effect, without resorting to strike or 

lock-out, all the terms and conditions of the existing contract for a 

period of sixty days after such notice is given or until the 

expiration date of such contract, whichever occurs later:

The duties imposed upon employers, employees, and labor organizations 

by paragraphs (2) to (4) of this subsection shall become inapplicable 

upon an intervening certification of the Board, under which the labor 

organization or individual, which is a party to the contract, has been 

superseded as or ceased to be the representative of the employees 

USCA Case #20-1398 Document #1894952 Filed: 04/16/2021 Page 96 of 99
14

subject to the provisions of section 159(a) of this title, and the duties so 

imposed shall not be construed as requiring either party to discuss or 

agree to any modification of the terms and conditions contained in a 

contract for a fixed period, if such modification is to become effective 

before such terms and conditions can be reopened under the provisions 

of the contract. Any employee who engages in a strike within any notice 

period specified in this subsection, or who engages in any strike within 

the appropriate period specified in subsection (g) of this section, shall 

lose his status as an employee of the employer engaged in the particular 

labor dispute, for the purposes of sections 158, 159, and 160 of this title, 

but such loss of status for such employee shall terminate if and when he 

is reemployed by such employer. Whenever the collective bargaining 

involves employees of a health care institution, the provisions of this 

subsection shall be modified as follows:

(A) The notice of paragraph (1) of this subsection shall be 

ninety days; the notice of paragraph (3) of this subsection 

shall be sixty days; and the contract period of paragraph (4) 

of this subsection shall be ninety days.

(B) Where the bargaining is for an initial agreement 

following certification or recognition, at least thirty days' 

notice of the existence of a dispute shall be given by the labor 

organization to the agencies set forth in paragraph (3) of this 

subsection.

(C) After notice is given to the Federal Mediation and 

Conciliation Service under either clause (A) or (B) of this 

sentence, the Service shall promptly communicate with the 

parties and use its best efforts, by mediation and 

conciliation, to bring them to agreement. The parties shall 

participate fully and promptly in such meetings as may be 

undertaken by the Service for the purpose of aiding in a

settlement of the dispute.

5 C.F.R. § 2427.2(a)

Requests for General Policy Statements of Policy or Guidance

(a) The head of an agency (or designee), the national president of a labor 

organization (or designee), or the president of a labor organization not 

USCA Case #20-1398 Document #1894952 Filed: 04/16/2021 Page 97 of 99
15

affiliated with a national organization (or designee) may separately or 

jointly ask the Authority for a general statement of policy or guidance. 

The head of any lawful association not qualified as a labor 

organization may also ask the Authority for such a statement provided 

the request is not in conflict with the provisions of chapter 71 of title 5 

of the United States Code or other law.

5 C.F.R. § 2427.4

Submissions from Interested Parties

Prior to issuance of a general statement of policy or guidance the 

Authority, as it deems appropriate, will afford an opportunity to 

interested parties to express their views orally or in writing.

5 C.F.R. § 2427.5

Standards Governing Issuance of General Statements of Policy 

or Guidance

In deciding whether to issue a general statement of policy or guidance, 

the Authority shall consider:

(a) Whether the question presented can more appropriately be 

resolved by other means;

(b) Where other means are available, whether an Authority 

statement would prevent the proliferation of cases involving the 

same or similar question;

(c) Whether the resolution of the question presented would have 

general applicability under the Federal Service Labor–

Management Relations Statute;

(d) Whether the question currently confronts parties in the context 

of a labor-management relationship;

(e) Whether the question is presented jointly by the parties 

involved; and

(f) Whether the issuance by the Authority of a general statement 

of policy or guidance on the question would promote constructive 

and cooperative labor-management relationships in the Federal 

USCA Case #20-1398 Document #1894952 Filed: 04/16/2021 Page 98 of 99
16

service and would otherwise promote the purposes of the Federal 

Service Labor–Management Relations Statute.

USCA Case #20-1398 Document #1894952 Filed: 04/16/2021 Page 99 of 99