Recently, the U.S. Court of Appeals for the D.C. Circuit issued a favorable, unanimous decision in AFL-CIO v. FLRA, a case involving NTEU and other unions that protects unions’ right to bargain over many management-initiated changes to working conditions. Under the court’s decision, agencies must bargain over any management-initiated change except those having only a minor, “de minimis” impact.
NTEU and two other unions challenged an adverse Federal Labor Relations Authority (FLRA) decision issued on September 30, 2020, that limited labor organizations’ bargaining rights. The FLRA in this 2-1 decision changed the standard from agencies being required to bargain over all changes that were more than “de minimis,” to bargaining only being required if the agency proposal was a “clear and meaningful” substantial change. This meant, simply, that unions would be able to bargain over far fewer matters. The FLRA’s decision was an abrupt reversal of its own precedent. And even more egregiously, the FLRA issued this decision upon the request of two agencies and without soliciting any input from the labor community.
NTEU immediately filed a petition for review in the D.C. Circuit on September 30, 2020. Two other unions also petitioned for review and the cases were consolidated and briefed. Agreeing with the unions, the D.C. Circuit vacated the FLRA decision and restored the de minimis standard. It held that the FLRA’s decision “to abandon its longstanding precedents and adopt the substantial impact standard was not sufficiently reasoned[.]” It criticized the FLRA’s decision as “inconsistent” and offering only “various ill-defined reasons” for departing from de minimis precedent.” The panel unanimously reversed the decision, concluding that the “cursory policy statement that the FLRA issued to justify its choice to abandon thirty-five years of precedent. . . is arbitrary and capricious.”
NTEU is gratified that the court has protected unions’ right to bargain over most management-initiated changes.