United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 14, 2021 Decided January 28, 2022

No. 20-1398

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,

AFL-CIO,

PETITIONER

v.

FEDERAL LABOR RELATIONS AUTHORITY,

RESPONDENT

Consolidated with 20-1399, 20-1405

On Petitions for Review of a Decision

of the Federal Labor Relations Authority

Paras N. Shah argued the cause for petitioners. With him 

on the briefs were Gregory O=Duden, Julie M. Wilson, David 

A. Borer, Andres M. Grajales, Chad E. Harris, Judith E. Rivlin, 

and Teague P. Paterson.

Noah Peters, Solicitor, Federal Labor Relations Authority, 

argued the cause for respondent. With him on the brief were 

Rebecca J. Osborne, Deputy Solicitor, and Sarah C. 

Blackadar, Attorney.

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Before: SRINIVASAN, Chief Judge, MILLETT and PILLARD, 

Circuit Judges.

Opinion for the Court filed by Circuit Judge PILLARD.

PILLARD, Circuit Judge: When issues arise during the 

term of a collective bargaining agreement that are not covered 

by the agreement, federal employees may seek to bargain with 

their agency employers over how such issues should be 

handled. For its part, an agency may try to head off such

midterm bargaining by securing during term bargaining a 

clause in the parties’ collective bargaining agreement that 

limits or forecloses midterm bargaining. Such a clause is 

commonly referred to as a zipper clause—a clause that treats 

the term agreement as having zipped up, or closed off, potential 

midterm bargaining. Unions, valuing the opportunity to 

negotiate midterm on unforeseen matters not already covered 

by the existing agreement, such as the effect of a pandemic on 

the workplace, generally oppose zipper clauses.

It is not disputed that parties may negotiate over and agree 

to a zipper clause. But what happens if an agency proposes a 

zipper clause, and the union disagrees on whether or to what 

extent to include it in the collective bargaining agreement? The 

answer largely depends on whether zipper clauses are a 

“mandatory” or “permissive” subject of bargaining. Federal 

labor law treats some subjects of collective bargaining as 

mandatory, meaning that when parties bargain to impasse over 

proposals on those subjects, a dissatisfied party may seek 

resolution from the Federal Service Impasses Panel. And Panel 

resolution may include imposition of the clause in the 

agreement over the other party’s objection. In contrast, 

subjects that are permissive for one or both parties are those on 

which a party may choose to, but need not, bargain. A party 

may decline to negotiate on proposals on permissive subjects, 

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and its counterparty may not take disputes over such proposals 

to the impasses panel for potential insertion into the agreement.

The unions here challenge a Policy Statement of the

Federal Labor Relations Authority that announced for the first 

time that zipper clauses are mandatory bargaining subjects. 

U.S. Off. of Pers. Mgmt. (Petitioner) (Policy Statement), 71 

F.L.R.A. 977, 977 (Sept. 30, 2020). In other words, the 

Authority determined that, if an agency and a union intractably 

disagree over a zipper clause proposal, the agency may bring 

the proposal to the impasses panel—which has the authority to 

put it (or a different clause reflecting what it determines to be 

a better resolution) into the parties’ term agreement. FLRA 

policy statements are unusual: Before producing a spate of 

them in 2020, including the one challenged here, the Authority 

had not issued any Policy Statement in over thirty-five years. 

Three labor unions challenge this one as arbitrary and 

capricious. 

We grant the petitions for review and vacate the Policy 

Statement. Importantly for our analysis, the Authority chose to 

structure its consideration of the zipper clause question in two 

steps, casting its answer at step one as also determinative of 

step two. The Authority first held that the Federal Service 

Labor-Management Relations Statute (Statute) does not entitle 

employees to demand midterm bargaining even when the 

parties’ agreement is silent on the matter. Policy Statement, 71 

F.L.R.A. at 979. The Authority then relied on that holding as 

“necessary” to its conclusion that proposed contractual zipper 

clauses expressly foreclosing midterm bargaining are 

mandatory bargaining subjects. Id. at 979 n.35. The first 

holding was arbitrary and capricious. The Authority’s errors

include miscasting Supreme Court precedent, relying on 

conclusory assertions, and mischaracterizing its dramatic shift 

of the bargaining baseline as allowing “the parties to resolve” 

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the issue. Id. at 979. And, because the Authority avowedly 

rested its second holding on its first, we must vacate the zipper 

clause holding as well. In view of these conclusions, we need 

not rule on the unions’ threshold objection that the Authority 

ignored its own criteria for issuance of general statements of 

policy. See 5 C.F.R. § 2427.5. 

I. BACKGROUND

In July 2019, the Office of Personnel Management (OPM)

petitioned the Authority for a policy statement on the question 

whether zipper clauses are mandatory or permissive bargaining 

subjects. See 5 U.S.C. § 7105(a)(1) (statutory basis for FLRA

policy statements); 5 C.F.R. §§ 2427.1-.5 (governing 

regulations). The Authority solicited comments on that 

question, and ten commenters timely responded.

Some commenters supportive of the proposed policy 

thought that zipper clauses must be mandatory because “all 

conditions of employment are presumed to be mandatory 

subjects of bargaining” unless the Statute “explicitly or by 

unambiguous implication” defines them as permissive, which 

they argued it does not. See, e.g., U.S. Dep’t of Agric., 

Comment Letter on Proposed General Statement of Policy 

(Apr. 29, 2020) (quoting Nat’l Treasury Emps. Union v. FLRA

(NTEU 2005), 399 F.3d 334, 340 (D.C. Cir. 2005)), J.A. 67-68. 

Commenters reasoned that zipper clauses should be viewed as 

mandatory based on the Authority’s mandatory 

characterization of reopener clauses, which expressly allow 

midterm bargaining that would otherwise be foreclosed as to 

subjects already “covered by” a term agreement. See Nat’l 

Treasury Emps. Union & U.S. Customs Serv., 64 F.L.R.A. 156,

157-58 (2009). Agencies also commented that restricting 

midterm bargaining would promote efficiency by encouraging 

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parties to predict their needs during initial, term bargaining so 

prevent “piecemeal” negotiation.1 

Opponents of the proposed policy argued that the Statute 

establishes a unilateral statutory right to bargain midterm, 

equal to the right to bargain at term. Noting that the Authority 

recognizes midterm bargaining over the impact and 

implementation of certain management-initiated changes as a 

unilateral right subject to waiver only on a permissive basis, 

commenters applied the same reasoning to midterm bargaining 

on other subjects. Comments distinguished zipper clauses 

from reopeners, pointing out that reopeners address alreadybargained issues whereas zippers “alter[] the scope of the duty 

to bargain mid-term with respect to virtually all contract terms 

. . . not resolved by the agreement”—including those never 

negotiated or anticipated.2 Empowering the impasses panel to 

impose zipper clauses and long duration provisions, 

commenters predicted, “would adversely affect and prolong 

term bargaining” because, “[w]ithout the ability to bargain 

midterm, a union would feel compelled to bargain over and 

address every possible scenario, no matter how unlikely, that 

might come up during the term of the agreement.” Nat’l 

Treasury Emps. Union, Comment Letter on Proposed General 

Statement of Policy (Apr. 30, 2020), J.A. 47. 

1 U.S. Dep’t of Veterans Affs., Comment Letter on Proposed General 

Statement of Policy (Apr. 29, 2020), J.A. 22; see U.S. Immigr. & 

Customs Enf’t, Comment Letter on Proposed General Statement of 

Policy (Apr. 30, 2020), J.A. 57.

2 Ass’n of Admin. L. Judges, Comment Letter on Proposed General 

Statement of Policy (Apr. 29, 2020) (quoting NTEU 2005, 399 F.3d 

at 343), J.A. 20; see also Nat’l Air Traffic Controllers Ass’n, 

Comment Letter on Proposed General Statement of Policy (Apr. 30, 

2020), J.A. 37-38; Nat’l Treasury Emps. Union, Comment Letter on 

Proposed General Statement of Policy (Apr. 30, 2020), J.A. 45-50. 

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We have had few occasions to address the distinction 

between mandatory and permissive subjects of bargaining. In

American Federation of Government Employees v. FLRA

(AFGE 1983), 712 F.2d 640 (D.C. Cir. 1983), we held that 

matters relating to conditions of employment are 

presumptively mandatory bargaining subjects unless the 

Statute “explicitly or by unambiguous implication” provides a 

party with a “unilateral right[]” regarding the matter under 

consideration. AFGE 1983, 712 F.2d at 646 & n.27 (formatting 

modified). If the Statute clearly confers a right on a party, in 

other words, the party may refuse to bargain over proposals on 

that matter. Agencies, for instance, need not bargain over their 

right “to determine the mission, budget, organization, number 

of employees, and internal security practices of the agency.” 5 

U.S.C. § 7106(a)(1). And employees need not bargain over 

their right “to engage in collective bargaining with respect to 

conditions of employment.” 5 U.S.C. § 7102. But a party must 

bargain in good faith over any lawful proposal that does not 

trench on its unilateral rights. 

We reaffirmed and elaborated that standard in National 

Treasury Employees Union v. FLRA (NTEU 2005), 399 F.3d 

334 (D.C. Cir. 2005). We explained that not all rights provided 

by the Statute are necessarily unilateral rights and so 

permissive subjects of bargaining: Only rights which the 

Statute “explicitly or by unambiguous implication vests in a 

party” rise to the level of unilateral rights over which a party 

may but need not negotiate. NTEU 2005, 399 F.3d at 340

(quoting AFGE 1983, 712 F.2d at 646 n.27). 

As OPM recognized in its request for the Policy Statement, 

whether zipper clauses are mandatory or permissive bargaining 

subjects was an open question. No court had squarely decided

whether unions have a unilateral right to bargain midterm, nor 

had the Authority. The Authority expressly declined to decide 

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the point in U.S. Department of the Interior, Washington, D.C.

(Interior), 56 F.L.R.A. 45 (2000), on remand from the Supreme 

Court. 

The Supreme Court had held in National Federation of 

Federal Employees, Local 1309 v. Interior (Local 1309), 526 

U.S. 86 (1999), that the Statute’s text is ambiguous as to 

whether it confers a general right to midterm as well as term 

bargaining. Local 1309, 526 U.S. at 92. The key provision 

simply requires that parties “meet and negotiate in good faith 

for the purposes of arriving at a collective bargaining 

agreement.” Id. at 88 (quoting 5 U.S.C. § 7114(a)(4)). As the 

Court noted, “[o]ne can easily read ‘arriving at a collective 

bargaining agreement’ as including an agreement reached at 

the conclusion of midterm bargaining” just as it includes one 

resulting from term bargaining. Id. at 93 (second emphasis 

added). The Court acknowledged agencies’ concerns that 

midterm bargaining could incentivize piecemeal negotiation, 

but also recognized policy reasons that the Statute might 

require midterm bargaining: “Without midterm bargaining,” 

the Court wondered, “will it prove possible to find a collective 

solution to a workplace problem, say, a health or safety hazard, 

that first appeared midterm?” Id. at 94. Indeed, the Court 

reasoned, “[t]he Statute’s emphasis upon collective bargaining 

as ‘contribut[ing] to the effective conduct of public business’ 

suggests that it would favor joint, not unilateral, solutions to 

such midterm problems.” Id. (second alteration in original) 

(quoting 5 U.S.C. § 7101(a)(1)(B)). The Court accordingly

remanded for the Authority, informed by its “expertise in its

field of labor relations,” to decide whether the Statute requires 

midterm bargaining. Id. at 99 (quoting Bureau of Alcohol, 

Tobacco & Firearms v. FLRA, 464 U.S. 89, 97 (1983)).

The Authority took up that question in Interior and held 

that “under the Statute, agencies are obligated to bargain during 

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the term of a collective bargaining agreement on negotiable 

union proposals concerning matters that are not ‘contained in 

or covered by’ the term agreement, unless the union has waived 

its right.” Interior, 56 F.L.R.A. at 54. Quoting Congress’s 

statutory findings supportive of public-sector collective 

bargaining, the Authority underscored that nothing in the 

Statute suggests those findings are any less applicable to 

midterm than term bargaining. Id. at 51 (quoting 5 U.S.C. 

§ 7101(a)(1)). The Authority’s own judgment, informed by its 

experience, was that midterm bargaining leads to “more 

focused negotiations,” neither prompting kitchen-sink term 

bargaining over issues that might never arise, nor delaying 

resolution of important concerns that arise midterm until term 

negotiations recommence. Id. at 52. The Authority rejected as 

“unsupported and speculative” arguments that union-initiated 

midterm bargaining was harmful to federal sector labor 

relations. Id. at 54. In its experience, midterm bargaining was 

appropriately limited by the doctrine barring renegotiation of 

matters covered by the term agreement, gave rise to few 

disputed cases, and had not led to piecemeal or “continuous” 

bargaining as critics feared. Id. at 53.

But Interior decided only the default rule that parties have 

a “statutory right” to bargain midterm if the contract is 

otherwise silent. The Authority disclaimed any view on 

whether proposals for contractual zipper clauses are mandatory 

or permissive bargaining subjects. See Interior, 56 F.L.R.A. at 

54 (“[W]e will not consider” here the question “whether 

‘zipper clauses’ are a mandatory subject of negotiation.”). In 

deciding that the Statute requires midterm bargaining, then, 

Interior left open whether it does so “by unambiguous 

implication” so confers a “unilateral right” of the sort AFGE 

1983 and NTEU 2005 described. That state of affairs prevailed 

for two decades. 

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The Authority in November 2019 rejected a request to 

revisit Interior, describing the case as its “seminal” precedent 

recognizing the statutory right to midterm bargaining. See

OPM, 71 F.L.R.A. 423, 423 (2019). But just ten months later,

in the Policy Statement before us, the Authority reversed 

course. Before addressing the question expressly left open by 

Interior, the Authority circled back to repudiate the core 

holding of Interior that it had reaffirmed just months earlier. 

Deeming reconsideration of that issue “necessary” to its 

decision of the question OPM presented—whether zipper 

clauses are mandatory or permissive—the Authority revisited

Interior’s holding that the Statute requires midterm bargaining 

at all, even as a default rule. See Policy Statement, 71 F.L.R.A. 

at 979 n.35.

In a paragraph, the Authority jettisoned Interior. Contrary 

to its reasoning in Interior, the Authority’s Policy Statement

deemed it “more appropriate” to conclude that the Statute does

not require midterm bargaining. See Policy Statement, 71 

F.L.R.A. at 979. The Authority declared that the Statute 

“clearly established” an obligation to bargain at term, but itsaw 

“indeterminacy in the Statute’s text” as to whether it requires 

midterm bargaining. Id. The entirety of its analysis of the

distinction it drew is terse: 

As previously mentioned, the Supreme Court [in 

Local 1309] held that the Statute does not clearly 

require or prohibit midterm bargaining. In its decision 

on remand from the Supreme Court, the Authority 

decided that the Statute requires midterm bargaining. 

However, the Authority’s first consideration to 

support that conclusion is flawed. In particular, the 

Authority found that the Statute does not distinguish 

between obligations for midterm and term bargaining. 

But in one important respect, those obligations are 

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distinguishable: The parties’ mutual obligation to

bargain in term negotiations is clearly established in 

the Statute, whereas a mutual obligation to bargain 

midterm is not. Indeed, that indeterminacy in the 

Statute’s text was the driving force behind the 

Supreme Court’s ruling. Although the Court 

recognized that the Authority could resolve that 

ambiguity, and the Authority did so, we find it more 

appropriate to recognize that the Statute neither 

requires nor prohibits midterm bargaining. Instead, 

the Statute leaves midterm-bargaining obligations to 

the parties to resolve as part of their term negotiations.

Id. (footnotes omitted).

Having erased Interior by holding that the Statute simply 

does not obligate agencies to bargain midterm, the Authority 

then addressed the question OPM had posed: whether zipper 

clauses are mandatory or permissive bargaining subjects. 

Basing its conclusion on its reversal of Interior, the Authority 

held that zipper clauses are mandatory bargaining subjects. 

Immediately after the above-quoted paragraph regarding 

Interior, the Authority dispatched the zipper clause issue as 

follows:

Thus, we now hold 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. 

That treatment is consistent with the Authority’s 

previous recognition that matters relating to the 

parties’ midterm-bargaining relationship plainly 

relate to conditions of employment. Further, the 

Statute presumes that all matters relating to conditions 

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of employment are mandatory subjects of bargaining 

unless the text explicitly or by unambiguous 

implication vests in a party an unqualified, or 

“unilateral,” right. As explained above, the Statute 

does not, on its own, explicitly or by unambiguous 

implication vest either party with a unilateral right to 

engage in midterm bargaining. In other words, 

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. 

Policy Statement, 71 F.L.R.A. at 979-80 (footnotes omitted).

The core of the Authority’s reasoning is that, “[a]s 

explained above” in the prior paragraph regarding Interior, the 

Statute does not require midterm bargaining at all, even as a 

default matter, so necessarily fails to establish any unilateral 

right to midterm bargaining that would make it permissive, not 

mandatory, for unions to negotiate whether to retain that right 

to bargain. Id. at 980. The Authority held that the Statute 

consequently treats zipper clauses as mandatory bargaining 

subjects that, upon impasse, may be imposed on unions against 

their will by action of the impasses panel. In a footnote, the 

Authority added that it was “necessary” to decide whether the 

Statute requires midterm bargaining “in order to properly 

evaluate” the zipper clause question. Id. at 979 n.35. The 

Authority also asserted that other statutory language, which 

allows parties to determine appropriate techniques to aid their 

negotiations, offered “further support” for its position. Id. at 

980.

Three federal employee labor unions timely petitioned for 

review, and we consolidated those cases. The unions contend 

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that the Authority violated its regulations providing criteria for 

issuance of Policy Statements, abrogated its precedent without 

reasoned explanation and in contravention of the Statute’s text 

and purpose, and relied on unreasoned bases for concluding 

that zipper clauses are mandatory subjects of bargaining. We 

have jurisdiction, 5 U.S.C. § 7123(a), and the unions have 

standing, see AFGE v. FLRA, 750 F.2d 143, 144-45 (D.C. Cir. 

1984).

II. ANALYSIS

We evaluate the Authority’s Policy Statement under the 

arbitrary and capricious standard of review. 5 U.S.C. 

§ 7123(c); see Motor Vehicle Mfrs. Ass’n v. State Farm Mut. 

Auto. Ins. Co., 463 U.S. 29, 34 (1983). Under that standard,

“we must ensure that the Authority examined the relevant data 

and articulated a satisfactory explanation for its action 

including a rational connection between the facts found and the 

choice made.” AFGE v. FLRA (AFGE 2020), 961 F.3d 452, 

456 (D.C. Cir. 2020) (formatting modified). Put another way, 

the Authority must show that its decision “was the product of 

reasoned decisionmaking.” State Farm, 463 U.S. at 52; accord 

AFGE 2020, 961 F.3d at 456-57 (quoting Allentown Mack 

Sales & Serv., Inc. v. NLRB, 522 U.S. 359, 374 (1998)).

We “must judge the propriety of [an agency’s] action 

solely by the grounds invoked by the agency.” SEC v. Chenery 

Corp. (Chenery II), 332 U.S. 194, 196 (1947). “[C]ourts may 

not accept appellate counsel’s post hoc rationalizations for 

agency action.” State Farm, 463 U.S. at 50 (citing Burlington 

Truck Lines, Inc. v. United States, 371 U.S. 156, 168 (1962)). 

We may limit invalidation to defective portions of an agency’s

action and leave others standing when “they operate entirely 

independently of one another,” Davis Cnty. Solid Waste Mgmt.

v. EPA, 108 F.3d 1454, 1459 (D.C. Cir. 1997), but will 

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invalidate the action as a whole if we are not “sure” the 

provisions are “wholly independent,” Am. Petroleum Inst. v.

EPA, 862 F.3d 50, 71 (D.C. Cir. 2017).

We begin where the Authority did, with its holding that the 

Statute does not require midterm bargaining. We vacate that 

holding as arbitrary and capricious. We then consider the 

Agency’s ultimate holding that zipper clauses are mandatory 

bargaining subjects. Because the Authority treated its first, 

invalid holding as the “necessary” predicate to its second, we 

must vacate the latter as well.

A. The Authority’s First Holding Was Arbitrary and 

Capricious.

The Authority failed to offer a reasoned explanation for its 

decision that the Statute does not require midterm bargaining. 

The Policy Statement simply deemed it “more appropriate” to 

read the Statute to not require midterm bargaining. Policy 

Statement, 71 F.L.R.A. at 979. But it offered no non-arbitrary 

reason why. 

The only explanation the Authority offered was what it 

saw as a negative implication of the statutory text: The Statute 

“clearly established” term bargaining but was 

“indetermina[te]” as to midterm bargaining, it reasoned, 

implying the exclusion of the latter. Id. But the statutory text 

does not separately define term and midterm bargaining. The 

text the Authority leans on as showing the “one important 

respect” in which the Statute differentiates the two bargaining 

stages, id., in fact makes no distinction at all. It says only that 

the parties must “meet and negotiate in good faith for the 

purposes of arriving at a collective bargaining agreement”—

whether in term or midterm negotiations. 5 U.S.C. 

§ 7114(a)(4). 

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Indeed, the Supreme Court in Local 1309 held that the very 

phrase on which the Authority here relies does not differentiate 

the two bargaining stages, so that text cannot alone impart the 

meaning the Policy Statement ascribes to it. The Court stressed 

that the operative provision simply refers to collective 

bargaining, and that “[o]ne can easily read ‘arriving at a 

collective bargaining agreement’ as including an agreement 

reached at the conclusion of midterm bargaining.” 526 U.S. at 

93 (quoting 5 U.S.C. § 7114(a)(4)); see also Policy Statement, 

71 F.L.R.A. at 983 (Member DuBester, dissenting) (observing 

that “Local 1309 rejected this very premise” that the Policy 

Statement relies on). In fact, as discussed above, the Court

suggested that the Statute’s text, structure, history, and 

objectives taken together might imply a duty to bargain 

midterm as well as at term, see 526 U.S. at 94—perhaps even 

by unambiguous implication, see Interior, 56 F.L.R.A. at 54 

(leaving the point open). As manifest by the Court’s remand, 

the textual ambiguity of the identified phrase does not itself 

mean that midterm bargaining is not required. 

The Authority’s contrary view cannot stand. Its parsing of 

the same few words that the Court considered in Local 1309

was the only reason the Authority gave for the first analytic 

step of its Policy Statement. In the absence of any other 

support, that first conclusion is arbitrary and capricious.

That flaw alone requires vacatur. But the Authority’s 

holding was unreasoned in three further ways. 

First, the Authority rested its policy decision on a basic 

mischaracterization of the Supreme Court’s holding in Local 

1309 that wrongly equated not expressly requiring midterm 

bargaining with prohibiting it. The Policy Statement declares

that “the Supreme Court held that the Statute does not clearly 

require or prohibit midterm bargaining.” Policy Statement, 71 

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F.L.R.A. at 979. But the Supreme Court rejected the Fourth 

Circuit’s view that the Statute prohibits midterm bargaining. 

See Local 1309, 526 U.S. at 91-92. The only question on 

remand to the Authority following the Court’s Local 1309

decision was whether the Statute recognizes a right to midterm 

bargaining or instead simply does not address it. See id. at 88. 

In miscasting Local 1309 as leaving open whether the Statute 

“requires []or prohibits” midterm bargaining, 71 F.L.R.A. at 

979, the Authority incorrectly suggested its decision struck a 

middle position on the issue. 

Second, the Authority based its holding on an unsupported 

premise that its Policy Statement increased choice among the 

parties. It reasoned that “the Statute leaves midtermbargaining obligations to the parties to resolve.” Policy 

Statement, 71 F.L.R.A. at 979. But reversing Interior affected 

the default rule, which applies if the parties have not otherwise 

decided whether and how they will bargain midterm. The 

Authority did not explain how altering that default to empower 

the impasses panel to intervene and forbid or limit midterm 

bargaining increases party choice.

Third, even as it acted without advance notice or 

justification to abrogate its decades-old precedent in Interior, 

the Authority in the same breath described itself as taking no 

position on the issue Interior resolved. The Policy Statement

commented that, following Local 1309, the Authority “could 

resolve” the textual ambiguity and “did so” in Interior, but that 

it now deemed it “more appropriate” to leave that question “to 

the parties.” 71 F.L.R.A. at 979. But it did nothing of the sort. 

In fact, as discussed above, it flipped the baseline that the 

Authority, pursuant to the Supreme Court’s remand, had set in 

Interior to hold instead that the Statute does not require 

midterm bargaining. Under the guise of neutrally declining to 

exercise the policy authority it wielded, the Authority answered

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the precise question that it simultaneously said it “could” but 

did not resolve. See id.

The Authority also gave no hint in its public notice that it 

viewed the zipper clause question as opening the door to 

reconsidering its longstanding holding in Interior. It thus 

issued its Policy Statement without the benefit of public 

comment on Interior’s continued vitality. See Policy 

Statement, 71 F.L.R.A. at 984 & n.34 (Member DuBester, 

dissenting) (describing how commenters assumed Interior’s 

“well-established principle” was not up for reconsideration). 

But because we hold that the Authority’s reasoning was 

deficient, we need not reach whether the rule might be 

procedurally defective on that ground.

The drive-by procedure and conclusory reasoning that 

produced the challenged Policy Statement is little match for the 

full process and detailed analysis that supported the Authority’s 

determination in Interior. There, the Authority had deployed 

subject matter expertise to analyze the Statute and assess how 

best to structure the bargaining relationship. Here, the 

Authority did nothing of the sort. It dispensed with Interior in 

one paragraph of flawed textual analysis, devoid of any 

reasoned application of its labor relations expertise. Because 

the Policy Statement does not pass muster under State Farm, 

we need not reach the unions’ contention that the Authority’s 

change from its previously established position imposed any 

distinct burden of justification, see Pet’rs’ Br. at 35-38,

particularly whether the Authority implicitly contravened 

factual findings from Interior or unsettled strong reliance 

interests, see FCC v. Fox Television Stations, Inc., 556 U.S. 

502, 515-16 (2009). 

The Authority’s holding on the first step by which it 

structured its decision thus fails as unreasoned, so we vacate it.

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B. The Authority’s Second Holding, Which It Expressly 

Rested on the First, Was Also Arbitrary and 

Capricious.

The Authority next held that zipper clauses are mandatory 

bargaining subjects. Because the Authority rested this holding 

critically on the first, we must vacate it as well.

The Authority expressly framed its second, zipper-clause 

holding as dependent on and flowing from its reconsideration 

of Interior. The Authority found it “necessary” to reach its first 

holding in order to “properly evaluate” the zipper clause 

question. Policy Statement, 71 F.L.R.A. at 979 n.35. Then, 

after stating what counts as a unilateral right, the Authority 

made its second holding by cross reference: “As explained 

above,” it wrote, zipper clauses must be mandatory bargaining 

subjects. Id. at 980. The Authority offered no other,

independent rationale for its zipper clause holding. 

Under the Authority’s own decisional architecture, then, 

its second conclusion rests on its first. Bound as we are by the 

Authority’s actual justification, see Chenery II, 332 U.S. at 

196, we hold that the collapse of the first step brings the second

down with it. See also Am. Petroleum Inst., 862 F.3d at 71;

Davis, 108 F.3d at 1459. 

In a rationale offered as “further support” for its zipper 

clause holding—not as an alternative basis that could bear the 

holding’s full weight absent the Authority’s first holding—the 

Authority pointed to section 7114(a)(4). Nothing about that 

provision helps to distinguish mandatory bargaining subjects 

from permissive ones. The Statute there says that parties “may 

determine appropriate techniques . . . to assist in any 

negotiation.” 5 U.S.C. § 7114(a)(4). The Authority reasoned 

that zipper clauses could constitute one such technique because 

they clarify the scope and timing of negotiations. Policy 

USCA Case #20-1398 Document #1932679 Filed: 01/28/2022 Page 17 of 18
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Statement, 71 F.L.R.A. at 980. That reasoning is a non 

sequitur. The relevant question is whether the Statute 

explicitly or by unambiguous implication gives either party a 

right. If it does, that right is a unilateral right—even if doing 

away with it might simplify negotiations. In any event, the 

Authority did not present this “further support” for its Policy 

Statement as an alternative basis that could bear the full weight 

of its zipper-clause decision absent its first holding, so we 

cannot now view it that way. See Chenery II, 332 U.S. at 196. 

* * *

We grant the unions’ petitions for review and vacate the 

Authority’s decision in full.

So ordered.

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