United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 15, 2021 Decided August 2, 2022

No. 20-1400

NATIONAL TREASURY EMPLOYEES UNION,

PETITIONER

v.

FEDERAL LABOR RELATIONS AUTHORITY,

RESPONDENT

OFFICE OF PERSONNEL MANAGEMENT AND UNITED STATES 

DEPARTMENT OF AGRICULTURE,

INTERVENORS

Consolidated with 20-1402, 20-1403

On Petitions for Review of an Order

of the Federal Labor Relations Authority

Kathryn W. Bailey argued the cause for petitioners. With 

her on the briefs were Gregory O’Duden, Julie M. Wilson,

Jessica Horne, David A. Borer, Andres M. Grajales, Mark L. 

Vinson, Judith E. Rivlin, and Teague P. Paterson.

Rebecca J. Osborne, Deputy Solicitor, Federal Labor 

Relations Authority, argued the cause for respondent. With her 
2

on the brief were Noah Peters, Solicitor, and Sarah C. 

Blackadar and Joshua D. Brown, Attorneys.

Joseph F. Busa, Attorney, U.S. Department of Justice, 

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

Brian M. Boynton, Acting Assistant Attorney General, and 

Melissa N. Patterson, Attorney.

Before: MILLETT, KATSAS, and RAO, Circuit Judges.

Opinion for the Court filed by Circuit Judge KATSAS.

KATSAS, Circuit Judge: The Federal Service LaborManagement Relations Statute grants the heads of federal 

agencies the right to review collective bargaining agreements

before they go into effect. Once an agreement passes such

review, the Statute forbids enforcement of new regulations that 

conflict with the agreement. The question presented is whether 

the triggering of a continuance clause, which extends a contract 

pending negotiations of a successor agreement, permits a 

second round of agency-head review and enforcement of 

conflicting regulations that became effective after the original 

agreement. We hold that the operation of a continuance clause 

does not have either consequence.

I

A

The Statute gives certain federal workers the right to

engage in collective bargaining with their employing agency. 

5 U.S.C. § 7102(2). Negotiations result in a collective 

bargaining agreement, which sets the terms and conditions of 
3

employment within the agency. Id. § 7114(a)(4). The Federal 

Labor Relations Authority administers the Statute. Id. § 7105.

The Statute permits an agency head to review a collective 

bargaining agreement before it takes effect. 5 U.S.C. 

§ 7114(c)(1). The agency head must approve the agreement 

unless it conflicts with applicable federal law. Id. § 7114(c)(2). 

If the agency head fails to act within 30 days of the agreement’s 

execution, the agreement takes effect and binds the parties for 

its duration. Id. § 7114(c)(3).

The Statute generally prohibits agencies from enforcing 

regulations that conflict with the terms of an existing collective 

bargaining agreement and that became effective after the 

agreement. 5 U.S.C. § 7116(a)(7). This prohibition runs for 

the life of the agreement. But once a collective bargaining 

agreement expires, all regulations issued since its effective date

become enforceable. Dep’t of Com. PTO & NTEU Chapter 

245, 65 F.L.R.A. 817, 819 (2011).

B

Collective bargaining agreements often specify what 

happens when the agreement nears its expiration and the parties 

have not negotiated a successor contract. Relevant terms may 

include continuance clauses and rollover clauses.

A continuance clause allows either party to extend the 

duration of an expiring agreement until its successor is in place. 

As the FLRA has explained, a continuance clause provides

that, “where renegotiations are requested, the existing 

agreement continues in force until the parties reach a new one.”

Decision On Request For General Statement Of Policy Or 

Guidance, 71 F.L.R.A. 986, 986 (2020) (Guidance). The 

following language is illustrative:
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If renegotiation of the Agreement is in process 

but not completed upon the expiration date of 

this Agreement, this Agreement will be 

extended until the renegotiations have been 

completed.

Collective Bargaining Agreement between the National 

Alliance of Postal and Federal Employees (NAPFE) and the 

Centers for Disease Control and Prevention 42, Art. 40.

A rollover clause, by contrast, automatically renews a

collective bargaining agreement when neither party wishes to

renegotiate. Such a clause typically specifies a window for 

either party to give notice of its desire to renegotiate. If neither 

party does, the agreement “rolls over” for a new term. The 

following language is illustrative:

This Agreement will remain in full force and 

effect for 6 years from its effective date and 

automatically renew itself from year to year 

thereafter. However, either party may give 

written or electronic notice of its intent to add, 

amend, reopen, modify or terminate existing 

Articles of the Agreement not more than 120 or 

less than 90 calendar days prior to the expiration 

date.

National Agreement between the American Federation of 

Government Employees (AFGE) and the Social Security 

Administration 33, Art. 7, § 2.

C

The Department of Agriculture asked the FLRA for 

guidance on whether an agency head may review a collective 
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bargaining agreement when it is extended under a continuance 

clause. The Authority concluded that agency heads may do so. 

Guidance, 71 F.L.R.A. at 989. It further concluded that, when 

an agreement is so extended, the employing agency may begin 

to enforce regulations that conflict with the agreement and that 

became effective after the agreement’s original effective date. 

Id.

Member DuBester dissented. In his view, the Authority 

should not have given general guidance divorced from the 

precise language of specific continuance clauses. Id. at 990. 

Further, he concluded that the guidance conflicts with the 

Statute and with FLRA precedent. Id. at 990–91.

Three unions petitioned for review of the FLRA’s order. 

The USDA, along with the Office of Personnel Management, 

intervened to defend the guidance. We have jurisdiction under 

5 U.S.C. § 7123(a). See AFGE v. FLRA, 750 F.2d 143, 144 

(D.C. Cir. 1984).

II

We review FLRA orders under the standards set forth in 

the Administrative Procedure Act. 5 U.S.C. § 7123(c). And 

we review FLRA interpretations of the Statute under the 

familiar Chevron framework. AFGE, AFL-CIO, Local 2031 v. 

FLRA, 878 F.2d 460, 464 (D.C. Cir. 1989) (per curiam); see 

Chevron U.S.A. Inc. v. NRDC, 467 U.S. 837 (1984). Thus, we 

defer if the Authority has reasonably construed an ambiguous 

provision, but we use all available tools of statutory 

construction to decide whether the provision is ambiguous. See 

id. at 842–43 & n.9.
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III

The guidance at issue interpreted two provisions. First, the 

FLRA read section 7114(c) to permit agency-head review of a 

collective bargaining agreement when a party has extended it

under a continuance clause. Second, the FLRA read section 

7116(a)(7) not to bar the employing agency from enforcing 

later-in-time regulations that conflict with the agreement. We 

set aside both interpretations.

A

We start with agency-head review. Section 7114(c)

permits such review only “30 days from the date the agreement 

is executed.” 5 U.S.C. § 7114(c)(2). So the question is 

whether the extension of an agreement under a continuance 

clause constitutes the execution of a new agreement. The 

Statute does not define “executed,” so that term presumably 

derives its meaning from background principles of contract 

law. See FAA v. Cooper, 566 U.S. 284, 292 (2012). Under 

those principles, a written agreement is executed when the 

parties complete the formalities necessary to bring the 

agreement into its final, legally enforceable form. See, e.g.,

Housing Auth. of City of Dallas v. Killingsworth, 331 S.W.3d 

806, 811 (Tex. Ct. App. 2011); Nielsen Constr. Co. v. Int’l Iron 

Prods., 22 Cal. Rptr. 2d 497, 500 (Cal. Ct. App. 1993);

Execute, Black’s Law Dictionary (11th ed. 2019).

The guidance posits the execution of a new agreement—

and thus a second round of agency-head review—whenever an

existing agreement is extended under a continuance clause. 71 

F.L.R.A. at 988. But a continuance clause takes effect when 

either party seeks unilaterally to renegotiate the terms of an 

expiring agreement. It manifests the parties’ intent to be bound 

by the terms of their original agreement pending further 
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negotiations. And it remains in effect only while the parties

continue to disagree over the terms of any successor 

agreement. Thus, a continuance clause “simply lengthens the 

existing agreement for a new period of time.” Eastham v. 

Chesapeake Appalachia, LLC, 754 F.3d 356, 362 (6th Cir. 

2014) (applying Ohio law) (emphasis added); see also Nebo 

Ventures, LLC v. NovaPro Risk Sols., LP, 752 S.E.2d 18, 27 

(Ga. Ct. App. 2013) (“An extension ... does not contemplate a 

new agreement.” (cleaned up)); Extension, Black’s Law 

Dictionary (11th ed. 2019) (providing for the “continuation of 

the same contract for a specified period”); Renewal and 

Extension of Contracts, Generally, 17B C.J.S. Contracts § 668

(2020) (similar). In other words, an agreement with a 

continuance clause is simply a contract that expires on the later 

of a date certain or the adoption of a successor agreement. For 

these reasons, neither the invocation nor the operation of a 

continuance clause executes a new agreement.

The guidance relied on administrative precedent 

addressing the operation of rollover clauses. 71 F.L.R.A. at 

988–89 & nn.29–30. It cited an order holding that an 

“automatically renewed agreement is subject to agency-head 

approval” upon each renewal. Kansas Army Nat’l Guard, 47 

F.L.R.A. 937, 942 (1993). Whatever the merits of that ruling, 

it has no applicability to continuance clauses. A rollover clause 

takes effect when neither party expresses a desire to renegotiate

during a specified window, which may plausibly be described 

as assenting to a new agreement through mutual inaction. See,

e.g., Eastham, 754 F.3d at 361–62 (rollover clause specifies 

how “to execute a new contract” (cleaned up)); Distillery 

Rectifying & Wine Workers Int’l Union of Am. v. BrownForman Distillers Corp., 213 S.W.2d 610, 613 (Ky. 1948). In 

contrast, we have found no support for treating the invocation 

of a continuance clause as executing a new agreement.
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The FLRA contends that the word “executed” is at least 

ambiguous enough for its interpretation to warrant Chevron 

deference. Two of the cases it cites merely confirm the 

uncontroversial principle that the parties themselves may

determine what steps should be required to execute—i.e., 

finalize—their agreement. See Ass’n of Civilian Technicians 

Kentucky, 70 F.L.R.A. 968, 969 (2018); Ft. Bragg Ass’n of 

Teachers, 44 F.L.R.A. 852, 857–58 (1992). Its third case held 

that the agreement subject to agency-head review includes 

terms imposed by the Federal Service Impasses Panel in 

binding arbitration. AFGE v. FLRA, 778 F.2d 850, 857 (D.C. 

Cir. 1985). That holding rests on the statutory definition of the 

phrase “collective bargaining agreement,” which includes 

terms imposed by the Impasses Panel. 5 U.S.C. § 7103(a)(8); 

see AFGE v. FLRA, 712 F.2d 640, 646 n.24 (D.C. Cir. 1983).

Our reasoning on this point does nothing to undercut the default 

rule that, absent a statutory directive to the contrary, a 

contractual agreement requires the parties’ mutual assent. See,

e.g., Northland Capital Corp. v. Silver, 735 F.2d 1421, 1427 

(D.C. Cir. 1984). Nor do the AFGE cases say anything about 

when an agreement is “executed”—a question we did not 

address. See 778 F.2d at 857 (“a Panel-imposed settlement, 

once adopted by the parties, should be regarded as part of a 

collective bargaining agreement” (emphasis added) (quoting 

712 F.2d 640, 646 n.24)). None of these cases bears on the 

question presented here.

Because invoking a continuance clause does not execute a 

new agreement, there is no statutory basis for a second round 

of agency-head review.
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B

Section 7116(a)(7) forbids employing agencies from 

enforcing most regulations that conflict with a collective 

bargaining “agreement” that was “in effect” before the 

regulation issued. 5 U.S.C. § 7116(a)(7). The FLRA

concluded that, once an agreement has been extended through 

a continuance clause, the agency may enforce all conflicting 

regulations that became effective before the extension.

For many of the reasons already discussed, section 

7116(a)(7) cannot bear that interpretation. As shown above, 

contract extensions preserve an existing agreement rather than 

supplant it with a new one. Thus, an extended contract is the 

same “agreement” that was “in effect” before the extension. 

And so long as it remains in effect, the employing agency may 

not enforce new regulations that conflict with it.

The FLRA’s own description of continuance clauses 

reinforces our conclusion. According to the Authority, a 

continuance clause provides for an existing agreement to 

remain “in force” during renegotiations. Guidance, 71 

F.L.R.A. at 986. Yet section 7116(a)(7) bars enforcement of 

conflicting regulations while an agreement remains “in effect.” 

And there is no difference between the terms “in force” and “in 

effect,” which are used interchangeably. See, e.g., Bhd. of R.R. 

Trainmen v. Akron & Barberton Belt R.R. Co., 385 F.2d 581, 

611 (D.C. Cir. 1967) (labor agreements “in force continued in 

effect”); Liddell by Liddell v. Bd. of Educ. of St. Louis, 105 F.3d 

1208, 1211 (8th Cir. 1997) (similar).

Seeking deference, the FLRA contends that the phrase “in 

effect” is ambiguous because the terms of expired collective 

bargaining agreements sometimes continue to have legal force. 

For support, the Authority cites U.S. Border Patrol Livermore 
10

Sector, 58 F.L.R.A. 231 (2002), which states “the general 

principle that parties to an expired agreement continue to be 

bound by the provisions of that agreement until otherwise 

agreed or the provisions are modified in a manner consistent 

with the Statute.” Id. at 233. But this case does not involve 

expired agreements. And the fact that even expired agreements 

may in some sense remain “in effect” hardly supports the 

FLRA’s position that agreements extended under a 

continuance clause do not remain “in effect.”

Because the invocation of a continuance clause extends a 

collective bargaining agreement pending negotiations over its 

successor, the existing agreement remains “in effect” until a 

new agreement is in place. Thus, the employing agency may 

not enforce regulations that conflict with the agreement and 

that became effective after it did.

IV

The FLRA’s guidance conflicts with the Statute, so we

grant the petitions for review and set aside the guidance.1

So ordered.

1

 Given our disposition, we need not address the unions’ 

alternative argument that the FLRA insufficiently justified its 

decision to issue general guidance divorced from the terms of an

actual agreement.