Notice of Opportunity To Comment on a Request for a General Statement of Policy or Guidance on Whether “Zipper Clauses” Are Mandatory Subjects of Bargaining, 17767-17768 [2020-06456]

Download as PDF 17767 Proposed Rules Federal Register Vol. 85, No. 62 Tuesday, March 31, 2020 This section of the FEDERAL REGISTER contains notices to the public of the proposed issuance of rules and regulations. The purpose of these notices is to give interested persons an opportunity to participate in the rule making prior to the adoption of the final rules. FEDERAL LABOR RELATIONS AUTHORITY 5 CFR Part 2427 [FLRA Docket No. 0–PS–38] Notice of Opportunity To Comment on a Request for a General Statement of Policy or Guidance on Whether ‘‘Zipper Clauses’’ Are Mandatory Subjects of Bargaining Federal Labor Relations Authority. ACTION: Proposed issuance of a general statement of policy or guidance. AGENCY: The Federal Labor Relations Authority (Authority) solicits written comments on a request from the U.S. Office of Personnel Management (OPM) for a general statement of policy or guidance (general statement) holding that ‘‘zipper clauses’’—which are provisions that would foreclose or limit mid-term bargaining during the term of a collective-bargaining agreement (CBA)—are a mandatory subject of bargaining. Comments are solicited on whether the Authority should issue a general statement, and, if so, what the Authority’s policy or guidance should be. SUMMARY: To be considered, comments must be received on or before April 30, 2020. ADDRESSES: You may send comments, which must include the caption ‘‘OPM (Petitioner), Case No. 0–PS–38,’’ by one of the following methods: • Email: FedRegComments@flra.gov. Include ‘‘OPM (Petitioner), Case No. 0– PS–38’’ in the subject line of the message. • Mail or Express Mail: Emily Sloop, Chief, Case Intake and Publication, Federal Labor Relations Authority, Docket Room, Suite 200, 1400 K Street NW, Washington, DC 20424–0001. Instructions: Do not mail or express mail written comments if they have been submitted via email. Interested persons who mail or express mail written comments must submit an jbell on DSKJLSW7X2PROD with PROPOSALS DATES: VerDate Sep<11>2014 16:46 Mar 30, 2020 Jkt 250001 original and 4 copies of each written comment, with any enclosures, on 81⁄2 x 11 inch paper. Do not deliver your comments by hand, Federal Express, or courier. FOR FURTHER INFORMATION CONTACT: Emily Sloop, Chief, Case Intake and Publication, Federal Labor Relations Authority, (202) 218–7740. SUPPLEMENTARY INFORMATION: In Case No. 0–PS–38, OPM requests that the Authority issue a general statement concerning zipper clause provisions and whether such provisions are mandatory subjects of bargaining. Interested persons are invited to express their views in writing as to whether the Authority should issue a general statement and, if it does, what the Authority’s policy or guidance should be. Proposed Guidance To Heads of Agencies, Presidents of Labor Organizations, and Other Interested Persons: OPM has requested, under Section 2427.2(a) of the Authority’s rules and regulations (5 CFR 2427.2(a)), that the Authority issue a general statement of policy or guidance addressing the negotiability of zipper clause provisions and whether such provisions are mandatory subjects of bargaining. OPM asserts that the Authority’s precedent supports considering zipper clauses to be mandatory subjects of bargaining because such proposals clearly involve the parties’ mid-term bargaining rights and obligations, which have been found to be mandatory subjects of bargaining. The Authority has held that mandatory subjects of bargaining are topics that are within the required scope of bargaining. FDIC, Headquarters, 18 FLRA 768, 771 (1985). Furthermore, any party may bargain to impasse over mandatory topics. Id. Previously, judges of the D.C. Circuit have written separately to recognize the validity of zipper clauses. FLRA v. IRS, Dep’t of the Treasury, 838 F.2d 567, 569–70 (D.C. Cir. 1988) (Edwards, J. and Silberman, J., concurring in denial of reh’g) (IRS II). They noted that the Authority’s precedent established that ‘‘a union may contractually agree to waive its right to initiate bargaining in general by a ‘zipper clause,’ ’’ id. at 570 (quoting IRS, 29 FLRA 162, 166 (1987)), and rejected an argument that the Authority’s precedent established that PO 00000 Frm 00001 Fmt 4702 Sfmt 4702 zipper clauses are a permissive subject of bargaining. Id. In NTEU v. FLRA, the court found that ‘‘all conditions of employment are presumed to be mandatory subjects of bargaining . . . unless the Act explicitly or by unambiguous implication vests in a party an unqualified right.’’ 399 F.3d 334, 340 (D.C. Cir. 2005) (internal quotation marks omitted). Citing IRS, the court stated: [w]hile two members of this court have expressed their opinion that bargaining over a zipper clause may be mandatory, neither the FLRA nor our court has squarely addressed this issue. See FLRA v. Internal Revenue Serv., 838 F.2d 567 (D.C. Cir.1988)(Edwards, J. and Silberman, J., concurring in denial of reh’g)(disputing that FLRA precedent established zipper clause as permissive subject of bargaining); See also Interior, 56 F.L.R.A. at 54 (declining to address negotiability of zipper clause). Id. at 343. On remand, in NTEU, 64 FLRA 156, 157–59 (2009), the Authority found that ‘‘reopener clauses’’—which are provisions that specify the conditions where a party may seek to negotiate over a term that is ‘‘covered by’’ a CBA—are a mandatory subject of bargaining because they relate to conditions of employment and seek to define the parties’ mid-term bargaining rights and obligations. Because the Authority has only recognized reopener clauses as mandatory subjects of bargaining, OPM contends that it is prevented from utilizing the Federal Service Impasses Panel (the Panel) when a union elects to not agree to zipper clauses during term negotiations for a new CBA. As support, OPM cites to U.S. Department of HHS and NTEU, 18 FSIP 077 (2019). In that case, the Panel declined to exercise jurisdiction over a zipper clause because the Union ‘‘raised colorable questions’’ regarding whether such clauses concern a permissive topic of bargaining. OPM contends that the Authority’s precedent regarding zipper and reopener clauses have created an inequality where only reopener clauses can be bargained to impasse. Therefore, parties seeking to include a zipper clause are disadvantaged during term bargaining and the Panel is precluded from considering the totality of the circumstances when deciding to limit or broaden mid-term bargaining. Therefore, OPM concludes that parties should be able to bargain zipper clauses to E:\FR\FM\31MRP1.SGM 31MRP1 17768 Federal Register / Vol. 85, No. 62 / Tuesday, March 31, 2020 / Proposed Rules impasse. Furthermore, OPM argues that finding zipper clauses to be mandatory will avoid disputes during mid-term bargaining and reduce the number of unfair-labor-practice charges regarding actions taken pursuant to such clauses. In its request, OPM asks the Authority to issue a general statement holding that: 1. Zipper clauses are a mandatory topic of bargaining and, therefore, parties may bargain to impasse regarding both reopener and zipper clauses. Regarding the matters raised by OPM, the Authority invites written comments on whether issuance of a general statement of policy or guidance is warranted, under the standards set forth in Section 2427.5 of the Authority’s rules and regulations (5 CFR 2427.5), and, if so, what the Authority’s policy or guidance should be. Written comments must contain separate, numbered headings for each issue covered. Dated: March 24, 2020. Rebecca J. Osborne, Federal Register Liaison and Deputy Solicitor. [FR Doc. 2020–06456 Filed 3–30–20; 8:45 am] BILLING CODE 6727–01–P DEPARTMENT OF AGRICULTURE Agricultural Marketing Service 7 CFR Part 956 [Doc. No. AMS–SC–19–0115; SC20–956–1 PR] Sweet Onions Grown in the Walla Walla Valley of Southeast Washington and Northeast Oregon; Increased Assessment Rate Agricultural Marketing Service, USDA. ACTION: Proposed rule. AGENCY: This proposed rule would implement a recommendation from the Walla Walla Sweet Onion Marketing Committee (Committee) to increase the assessment rate established for the 2020 and subsequent fiscal periods. The proposed assessment rate would remain in effect indefinitely unless modified, suspended, or terminated. DATES: Comments must be received by June 1, 2020. ADDRESSES: Interested persons are invited to submit written comments concerning this proposed rule. Comments must be sent to the Docket Clerk, Marketing Order and Agreement Division, Specialty Crops Program, AMS, USDA, 1400 Independence jbell on DSKJLSW7X2PROD with PROPOSALS SUMMARY: VerDate Sep<11>2014 16:46 Mar 30, 2020 Jkt 250001 Avenue SW, STOP 0237, Washington, DC 20250–0237; Fax: (202) 720–8938; or internet: https://www.regulations.gov. Comments should reference the document number and the date and page number of this issue of the Federal Register and will be available for public inspection in the Office of the Docket Clerk during regular business hours, or can be viewed at: https://www.regulations.gov. All comments submitted in response to this rule will be included in the record and will be made available to the public. Please be advised that the identity of the individuals or entities submitting the comments will be made public on the internet at the address provided above. FOR FURTHER INFORMATION CONTACT: Dale Novotny, Marketing Specialist, or Gary Olson, Regional Director, Northwest Marketing Field Office, Marketing Order and Agreement Division, Specialty Crops Program, AMS, USDA; Telephone: (503) 326–2724 or Email: DaleJ.Novotny@usda.gov or GaryD.Olson@usda.gov. Small businesses may request information on complying with this regulation by contacting Richard Lower, Marketing Order and Agreement Division, Specialty Crops Program, AMS, USDA, 1400 Independence Avenue SW, STOP 0237, Washington, DC 20250–0237; Telephone: (202) 720– 2491, Fax: (202) 720–8938, or Email: Richard.Lower@usda.gov. SUPPLEMENTARY INFORMATION: This action, pursuant to 5 U.S.C. 553, proposes to amend regulations issued to carry out a marketing order as defined in 7 CFR 900.2(j). This proposed rule is issued under Marketing Agreement and Order No. 956, as amended (7 CFR part 956), regulating the handling of sweet onions grown in the Walla Walla Valley of southeast Washington and northeast Oregon. Part 956 (referred to as the ‘‘Order’’) is effective under the Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C. 601–674), hereinafter referred to as the ‘‘Act.’’ The Committee locally administers the Order and is comprised of producers and handlers of Walla Walla sweet onions operating within the production area, and a public member. The Department of Agriculture (USDA) is issuing this proposed rule in conformance with Executive Orders 13563 and 13175. This proposed rule falls within a category of regulatory actions that the Office of Management and Budget (OMB) exempted from Executive Order 12866 review. Additionally, because this proposed rule does not meet the definition of a significant regulatory action, it does not PO 00000 Frm 00002 Fmt 4702 Sfmt 4702 trigger the requirements contained in Executive Order 13771. See OMB’s Memorandum titled ‘‘Interim Guidance Implementing Section 2 of the Executive Order of January 30, 2017, titled ‘Reducing Regulation and Controlling Regulatory Costs’ ’’ (February 2, 2017). This proposed rule has been reviewed under Executive Order 12988, Civil Justice Reform. Under the Order now in effect, Walla Walla sweet onion handlers are subject to assessments. Funds to administer the Order are derived from such assessments. It is intended that the assessment rate would be applicable to all assessable Walla Walla sweet onions for the 2020 fiscal period and continue until amended, suspended, or terminated. The Act provides that administrative proceedings must be exhausted before parties may file suit in court. Under section 608c(15)(A) of the Act, any handler subject to an order may file with USDA a petition stating that the order, any provision of the order, or any obligation imposed in connection with the order is not in accordance with law and request a modification of the order or to be exempted therefrom. Such handler is afforded the opportunity for a hearing on the petition. After the hearing, USDA would rule on the petition. The Act provides that the district court of the United States in any district in which the handler is an inhabitant, or has his or her principal place of business, has jurisdiction to review USDA’s ruling on the petition, provided an action is filed no later than 20 days after the date of the entry of the ruling. This proposed rule would increase the assessment rate from $0.10 per 50pound bag or equivalent of Walla Walla sweet onions handled, the rate that was established for the 2017 and subsequent fiscal periods, to $0.15 per 50-pound bag or equivalent of Walla Walla sweet onions handled for the 2020 and subsequent fiscal periods. The Order provides authority for the Committee, with the approval of USDA, to formulate an annual budget of expenses and collect assessments from handlers to administer the program. The members are familiar with the Committee’s needs and with the costs of goods and services in their local area and are in a position to formulate an appropriate budget and assessment rate. The assessment rate is formulated and discussed in a public meeting. Thus, all directly affected persons have an opportunity to participate and provide input. For the 2017 and subsequent fiscal periods, the Committee recommended, and USDA approved, an assessment rate E:\FR\FM\31MRP1.SGM 31MRP1

Agencies

[Federal Register Volume 85, Number 62 (Tuesday, March 31, 2020)]
[Proposed Rules]
[Pages 17767-17768]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-06456]


========================================================================
Proposed Rules
                                                Federal Register
________________________________________________________________________

This section of the FEDERAL REGISTER contains notices to the public of 
the proposed issuance of rules and regulations. The purpose of these 
notices is to give interested persons an opportunity to participate in 
the rule making prior to the adoption of the final rules.

========================================================================


Federal Register / Vol. 85, No. 62 / Tuesday, March 31, 2020 / 
Proposed Rules

[[Page 17767]]



FEDERAL LABOR RELATIONS AUTHORITY

5 CFR Part 2427

[FLRA Docket No. 0-PS-38]


Notice of Opportunity To Comment on a Request for a General 
Statement of Policy or Guidance on Whether ``Zipper Clauses'' Are 
Mandatory Subjects of Bargaining

AGENCY: Federal Labor Relations Authority.

ACTION: Proposed issuance of a general statement of policy or guidance.

-----------------------------------------------------------------------

SUMMARY: The Federal Labor Relations Authority (Authority) solicits 
written comments on a request from the U.S. Office of Personnel 
Management (OPM) for a general statement of policy or guidance (general 
statement) holding that ``zipper clauses''--which are provisions that 
would foreclose or limit mid-term bargaining during the term of a 
collective-bargaining agreement (CBA)--are a mandatory subject of 
bargaining. Comments are solicited on whether the Authority should 
issue a general statement, and, if so, what the Authority's policy or 
guidance should be.

DATES: To be considered, comments must be received on or before April 
30, 2020.

ADDRESSES: You may send comments, which must include the caption ``OPM 
(Petitioner), Case No. 0-PS-38,'' by one of the following methods:
     Email: [email protected]. Include ``OPM 
(Petitioner), Case No. 0-PS-38'' in the subject line of the message.
     Mail or Express Mail: Emily Sloop, Chief, Case Intake and 
Publication, Federal Labor Relations Authority, Docket Room, Suite 200, 
1400 K Street NW, Washington, DC 20424-0001.
    Instructions: Do not mail or express mail written comments if they 
have been submitted via email. Interested persons who mail or express 
mail written comments must submit an original and 4 copies of each 
written comment, with any enclosures, on 8\1/2\ x 11 inch paper. Do not 
deliver your comments by hand, Federal Express, or courier.

FOR FURTHER INFORMATION CONTACT: Emily Sloop, Chief, Case Intake and 
Publication, Federal Labor Relations Authority, (202) 218-7740.

SUPPLEMENTARY INFORMATION: In Case No. 0-PS-38, OPM requests that the 
Authority issue a general statement concerning zipper clause provisions 
and whether such provisions are mandatory subjects of bargaining. 
Interested persons are invited to express their views in writing as to 
whether the Authority should issue a general statement and, if it does, 
what the Authority's policy or guidance should be.

Proposed Guidance

    To Heads of Agencies, Presidents of Labor Organizations, and Other 
Interested Persons:
    OPM has requested, under Section 2427.2(a) of the Authority's rules 
and regulations (5 CFR 2427.2(a)), that the Authority issue a general 
statement of policy or guidance addressing the negotiability of zipper 
clause provisions and whether such provisions are mandatory subjects of 
bargaining. OPM asserts that the Authority's precedent supports 
considering zipper clauses to be mandatory subjects of bargaining 
because such proposals clearly involve the parties' mid-term bargaining 
rights and obligations, which have been found to be mandatory subjects 
of bargaining. The Authority has held that mandatory subjects of 
bargaining are topics that are within the required scope of bargaining. 
FDIC, Headquarters, 18 FLRA 768, 771 (1985). Furthermore, any party may 
bargain to impasse over mandatory topics. Id.
    Previously, judges of the D.C. Circuit have written separately to 
recognize the validity of zipper clauses. FLRA v. IRS, Dep't of the 
Treasury, 838 F.2d 567, 569-70 (D.C. Cir. 1988) (Edwards, J. and 
Silberman, J., concurring in denial of reh'g) (IRS II). They noted that 
the Authority's precedent established that ``a union may contractually 
agree to waive its right to initiate bargaining in general by a `zipper 
clause,' '' id. at 570 (quoting IRS, 29 FLRA 162, 166 (1987)), and 
rejected an argument that the Authority's precedent established that 
zipper clauses are a permissive subject of bargaining. Id. In NTEU v. 
FLRA, the court found that ``all conditions of employment are presumed 
to be mandatory subjects of bargaining . . . unless the Act explicitly 
or by unambiguous implication vests in a party an unqualified right.'' 
399 F.3d 334, 340 (D.C. Cir. 2005) (internal quotation marks omitted). 
Citing IRS, the court stated:

[w]hile two members of this court have expressed their opinion that 
bargaining over a zipper clause may be mandatory, neither the FLRA 
nor our court has squarely addressed this issue. See FLRA v. 
Internal Revenue Serv., 838 F.2d 567 (D.C. Cir.1988)(Edwards, J. and 
Silberman, J., concurring in denial of reh'g)(disputing that FLRA 
precedent established zipper clause as permissive subject of 
bargaining); See also Interior, 56 F.L.R.A. at 54 (declining to 
address negotiability of zipper clause).

Id. at 343.
    On remand, in NTEU, 64 FLRA 156, 157-59 (2009), the Authority found 
that ``reopener clauses''--which are provisions that specify the 
conditions where a party may seek to negotiate over a term that is 
``covered by'' a CBA--are a mandatory subject of bargaining because 
they relate to conditions of employment and seek to define the parties' 
mid-term bargaining rights and obligations.
    Because the Authority has only recognized reopener clauses as 
mandatory subjects of bargaining, OPM contends that it is prevented 
from utilizing the Federal Service Impasses Panel (the Panel) when a 
union elects to not agree to zipper clauses during term negotiations 
for a new CBA. As support, OPM cites to U.S. Department of HHS and 
NTEU, 18 FSIP 077 (2019). In that case, the Panel declined to exercise 
jurisdiction over a zipper clause because the Union ``raised colorable 
questions'' regarding whether such clauses concern a permissive topic 
of bargaining.
    OPM contends that the Authority's precedent regarding zipper and 
reopener clauses have created an inequality where only reopener clauses 
can be bargained to impasse. Therefore, parties seeking to include a 
zipper clause are disadvantaged during term bargaining and the Panel is 
precluded from considering the totality of the circumstances when 
deciding to limit or broaden mid-term bargaining. Therefore, OPM 
concludes that parties should be able to bargain zipper clauses to

[[Page 17768]]

impasse. Furthermore, OPM argues that finding zipper clauses to be 
mandatory will avoid disputes during mid-term bargaining and reduce the 
number of unfair-labor-practice charges regarding actions taken 
pursuant to such clauses.
    In its request, OPM asks the Authority to issue a general statement 
holding that:
    1. Zipper clauses are a mandatory topic of bargaining and, 
therefore, parties may bargain to impasse regarding both reopener and 
zipper clauses.
    Regarding the matters raised by OPM, the Authority invites written 
comments on whether issuance of a general statement of policy or 
guidance is warranted, under the standards set forth in Section 2427.5 
of the Authority's rules and regulations (5 CFR 2427.5), and, if so, 
what the Authority's policy or guidance should be. Written comments 
must contain separate, numbered headings for each issue covered.

    Dated: March 24, 2020.
Rebecca J. Osborne,
Federal Register Liaison and Deputy Solicitor.
[FR Doc. 2020-06456 Filed 3-30-20; 8:45 am]
 BILLING CODE 6727-01-P
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