Natl Treas Empl v. FLRA

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 15, 2004 Decided March 8, 2005

No. 03-1351

NATIONAL TREASURY EMPLOYEES UNION,
PETITIONER

V.

FEDERAL LABOR RELATIONS AUTHORITY,
RESPONDENT

On Petition for Review of an Order of the
Federal Labor Relations Authority

Robert H. Shriver, III argued the cause for the petitioner.
Gregory O'Duden, General Counsel, and Barbara A. Atkin,
Deputy General Counsel, National Treasury Employees Union,
were on brief.

James F. Blandford, Attorney, Federal Labor Relations
Authority, argued the cause for the respondent. David M. Smith,
Solicitor, and William R. Tobey, Deputy Solicitor, Federal Labor
Relations Authority, were on brief.

Before: HENDERSON , RANDOLPH and GARLAND, Circuit
Judges.

Opinion for the court filed by Circuit Judge HENDERSON.
 2

Karen LeCraft Henderson, Circuit Judge: The National
Treasury Employees Union (NTEU or Union) petitions for
review of a decision by the Federal Labor Relations Authority
(FLRA or Authority) concluding that its proposals to define the
scope of the duty to bargain mid-term constitute only a
permissive subject of bargaining. Because the Authority failed
to adequately set forth its reasoning and also departed from
precedent without sufficient explanation, we remand the case.
I. Background
The NTEU serves as the exclusive bargaining representative
of employees of the U.S. Customs Service (Service or Agency).1
During the course of negotiations with the Agency over a new
collective bargaining agreement in 2001, the NTEU made two
proposals to require mid-term bargaining unless the matter at
issue was “specifically addressed” by the terms of the
agreement.2 The Agency refused to bargain over the proposals.

1
At the outset of this case, the Customs Service was a part of the
United States Department of the Treasury. Since then, it has been
incorporated into the United States Department of Homeland
Security. See 6 U.S.C. § 203(1).
2
The proposals differ slightly in their wording:

Proposal 1[:] Unless it is clear that a matter at issue
was specifically addressed by the parties in [sic] this
Agreement or an existing Memorandum of
Understanding, the subject is appropriate for mid-
term bargaining.

Proposal 2[:] The Employer recognizes that the
Union in accordance with law and the terms of this
Agreement has the right to … initiate bargaining on
its own and engage in mid-term bargaining over
 3

It argued that the Union proposals involved a permissive, not
mandatory, subject of bargaining under the Federal Service
Labor-Management Relations Statute, 5 U.S.C. §§ 7101–7135
(FSLMRS or Statute). The Union then filed a petition for
review with the FLRA on December 13, 2001. In a decision and
order dated September 25, 2003, the FLRA found the proposals
negotiable only at the election of the Agency. Nat’l Treasury
Employees Union & U.S. Customs Serv., 59 F.L.R.A. 217 (2003)
(Order). It concluded that the “covered by” doctrine, which —
in the absence of a collective bargaining agreement between the
parties to the contrary — limits the duty to bargain mid-term to
matters not (1) expressly contained or (2) inseparably bound up
with subjects covered in the agreement, see U.S. Dep’t of Health
& Human Serv., Soc. Sec. Admin., Baltimore, MD & Am. Fed’n
of Gov’t Employees, 47 F.L.R.A. 1004, 1016–18 (1993) (SSA),
“constitutes … a statutory right” and that therefore an agency
may, but “cannot be required to,” bargain over a proposal
modifying the doctrine. Order, 59 F.L.R.A. at 220. Pursuant to
section 7123(a) of the FSLMRS, the Union then petitioned this
court for review.
II. Discussion
A.
We review orders of the FLRA in accordance with section 706
of the Administrative Procedure Act (APA). 5 U.S.C. §
7123(c). Thus, the Authority’s decision will not be set aside
unless it is “arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A).

matters not specifically addressed in this Agreement
or an existing Memorandum of Understanding.

See Nat’l Treasury Employees Union & United States Customs
Serv., 59 F.L.R.A. 217, 217 (2003).
 4

The Authority is entitled to “considerable deference when …
applying the general provisions of the [Statute] to the
complexities of federal labor relations.” Bureau of Alcohol,
Tobacco & Firearms v. FLRA, 464 U.S. 89, 97 (1983) (internal
quotation marks omitted). We defer to the FLRA’s
interpretation of the FSLMRS if it is “reasonable and coherent.”
Am. Fed’n of Gov’t Employees v. FLRA, 712 F.2d 640, 643
(D.C. Cir. 1983). “If an agency construes its charter erratically
or inconsistently, however, little or no deference will be owed
to its decisions.” Id. at 643 n.17 (citing Adamo Wrecking Co. v.
United States, 434 U.S. 275, 287 n.5 (1978), and Skidmore v.
Swift & Co., 323 U.S. 134, 140 (1944)).
The duty to bargain mid-term derives from the FSLMRS’s
command to both labor and management to “meet and negotiate
in good faith for the purposes of arriving at a collective
bargaining agreement.” 5 U.S.C. § 7114(a)(4). Although the
text of the FSLMRS imposes no explicit obligation to bargain
mid-term, we concluded in Nat’l Treasury Employees Union v.
F.L.R.A., 810 F.2d 295 (D.C. Cir. 1987), that mid-term
bargaining is required under the Statute based on the purpose
and legislative history of the Statute as well as analogous private
sector precedent. Id. at 298–301.3 The FLRA adopted our
position, holding that an agency has a duty to bargain over mid-
term proposals regarding matters not “contained in the
agreement unless the union has waived its right to bargain about
the subject matter involved.”4 Internal Revenue Serv. & Nat’l

3
At least one circuit took the opposite position, finding no duty
under the FSLMRS to bargain mid-term. Soc. Sec. Admin. v.
FLRA, 956 F.2d 1280, 1288–89 (4th Cir. 1992).
4
Whether a matter is “covered by” the agreement (and therefore
exempt from any requirement to bargain mid-term) is analytically
distinct from whether a party has “waived” its right to bargain mid-
term over that matter. See Dep’t of the Navy v. FLRA, 962 F.2d
 5

Treasury Employees Union, 29 F.L.R.A. 162, 166 (1987). The
“contained in” exception to the duty to bargain was borrowed
from the private sector. See 29 U.S.C. § 158(d). The FLRA
gradually refined its understanding of the “contained in”
requirement, settling on the “covered by” test enunciated in SSA:
parties are free from any duty to bargain mid-term over matters
“expressly contained in” or “inseparably bound up with” a
contract term. 47 F.L.R.A. at 1016–18. This approach was
intended to balance the twin aims of the Statute: stability in
collective bargaining agreements and promotion of collective
bargaining to the broadest extent possible. See id. at 1018.
The issue of mid-term bargaining under the FSLMRS reached
the United States Supreme Court in Nat’l Fed’n of Fed.
Employees, Local 1309 v. U.S. Dep’t of Interior, 526 U.S. 86
(1999) (NFFE). There the Court held that “the Statute delegates
to the Federal Labor Relations Authority the legal power to
determine whether the parties must engage in mid-term
bargaining (or bargaining about that matter).” Id. at 88. It
further held that “Congress delegated to the Authority the power
to determine — within appropriate legal bounds — whether,
when, where, and what sort of mid-term bargaining is
required.” Id. at 98–99 (internal citations omitted). On remand
from the Supreme Court, the Authority iterated its earlier
interpretation that “under the Statute, agencies are obligated to
bargain during 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

48, 50 (D.C. Cir. 1992) (“A waiver occurs when a union knowingly
and voluntarily relinquishes its right to bargain over a matter; but
where the matter is covered by a collective bargaining agreement, the
union has exercised its bargaining right and the question of waiver
is irrelevant.”) (emphasis in original). Here, there is no issue of
waiver because the Union made the proposals during end-term
bargaining over a new collective bargaining agreement.
 6

union has waived its right to bargain about the subject matter
involved.” U.S. Dep’t of the Interior & U.S. Geological Survey,
Reston, Virginia, 56 F.L.R.A. 45, 50 (2000) (Interior). Like the
instant case, Interior involved a union proposal made during
end-term negotiations over a new collective bargaining
agreement. The union proposal in Interior required mid-term
bargaining over all negotiable union proposals “not covered by
the provisions of this agreement.” Interior, 56 F.L.R.A. at 45.
The Authority held the proposal to be a mandatory subject of
bargaining because it “restates a statutory obligation” and “is not
otherwise inconsistent with federal law or government-wide
regulation.” Id. at 50.
B.
This case presents an issue left undecided by the FLRA in
Interior: the negotiability of a mid-term bargaining proposal that
does more than “restate[] a statutory obligation.” Id. Under the
Statute, mandatory subjects of bargaining are those that involve
“conditions of employment,” 5 U.S.C. § 7103(a)(12).
“Conditions of employment” are broadly defined to include
“personnel policies, practices, and matters … affecting working
conditions.” Id. at § 7103(a)(14). The Authority’s approach
mirrors that of the private sector. See Gen. Elec. Co. & Int’l
Union of Elec. Radio & Mach. Workers, 173 N.L.R.B. 253, 257
(1968) (“[P]reliminary matters are just as much part of the
process of collective bargaining as the negotiation over wages,
hours, etc.”), enf’d 412 F.2d 512 (2d Cir. 1969). See also NLRB
v. Borg-Warner Corp., 356 U.S. 342, 349 (1958) (parties have
an “obligation … to bargain with each other in good faith with
respect to ‘wages, hours and other terms and conditions of
employment’ ”). Either party may bargain to impasse over
mandatory topics. Fed. Deposit Ins. Corp. & Nat’l Treasury
Employees Union, 18 F.L.R.A. 768, 771 (1985) (FDIC).
Permissive subjects, by contrast, are those over which the parties
have no obligation to bargain, either because they do not involve
 7

“conditions of employment” or because they involve “proposals
that a party negotiate to limit a right granted to it by the Statute.”
U.S. Food and Drug Admin. & Am. Fed. Gov’t Employees, 53
F.L.R.A. 1269, 1274 (1998). Permissive subjects are not
bargained to impasse. FDIC at 771 (“Clearly, if parties are not
required to bargain over permissive subjects of bargaining, it
follows that parties cannot insist on bargaining to impasse with
respect to such matters….”). Because the parties do not dispute
that mid-term bargaining involves a condition of employment,
the question is whether the “covered by” doctrine embodies a
statutory right the agency cannot be required to waive and
therefore the Union’s proposals involve only a permissive
subject of bargaining.
The Union first argues that, under FLRA precedent, the
statutory right to decline mid-term bargaining extends only to
matters “resolved” by the collective bargaining agreement and
that the “covered by” test is simply a substitute for the parties’
intent. Under the Union’s theory, the only matters “resolved” by
the agreement are the ones intended by the parties to be
resolved. Accordingly, a proposal to delineate the scope of the
duty to bargain mid-term does not affect the statutory right
because it merely clarifies the parties’ intentions. The NTEU
relies heavily on U.S. Customs Serv., Customs Mgt. Ct. &
NTEU, 56 F.L.R.A. 809 (2000) (Customs), in which the
Authority held that the parties’ intent is an “integral component
of [the second prong] of the ‘covered by’ analysis to determine
whether the matter sought to be bargained is inseparably bound
up with and thus is plainly an aspect of a subject covered by the
contract.” Id. at 814. The Union also cites a 1997 memorandum
issued by the FLRA General Counsel declaring that “the parties
may agree that the contract contains the full understanding and
obligation of the parties to negotiate over a specific matter
during the term of the agreement.” FLRA Office of Gen.
Counsel Mem., The Impact of Collective Bargaining
Agreements on The Duty to Bargain And The Exercise of Other
 8

Statutory Rights, at 16 (March 5, 1997) (reprinted in Appendix
to Brief for Petitioner).
Although the Union’s view of FLRA precedent is not
unreasonable, we defer to the Authority’s interpretation of its
own precedent. The FLRA’s decision in Customs explains that
the second prong of the “covered by” doctrine requires a review
of “all the record evidence,” of which the parties’ intent is a
“requisite component” but not the entire inquiry. Customs, 56
F.L.R.A. at 814. In essence, in the FLRA’s view, the “covered
by” test defines the scope of mid-term bargaining in a manner
that may be broader or narrower than the parties’ intent. In
addition, the General Counsel Memorandum cited by the NTEU
merely states that the parties “may agree” to define the scope of
the duty to bargain mid-term, presumably including an
agreement to bypass the “covered by” doctrine; it does not,
however, address whether such a proposal would be a
mandatory or permissive subject of bargaining. Moreover, the
Union offers no statutory text, no FLRA decision and no case
law to buttress its claim that the operative language governing
the scope of the duty to bargain mid-term covers only “matters
resolved through the[] agreement,” Brief for Petitioner at 26
(emphasis added), as opposed to matters “‘covered by’ or
‘contained in’ a collective bargaining agreement.” Dep’t of the
Navy, Marine Corps Logistics Base v. FLRA, 962 F.2d 48, 53
(D.C. Cir. 1992) (emphases added). The “covered by” doctrine
embodies the FLRA’s long-standing interpretation of the scope
of the duty to bargain mid-term under the Statute; accordingly,
the Union’s attempt to redefine that interpretation fails.
The Union’s second argument — that 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 — has more purchase. Many provisions of the FSLMRS
confer benefits and impose obligations in varying degrees on
labor and management. See, e.g., 5 U.S.C. § 7111 (agency must
 9

grant exclusive recognition to elected labor organization); id. at
§ 7115 (upon request, agency must pay union dues from
employee’s paycheck); id. at § 7119 (Federal Mediation and
Conciliation Services available to either party); id. at § 7121
(collective bargaining agreement must include grievance
procedure). Not all of these provisions constitute “statutory
rights” that must be waived before they are negotiable. For
instance, in Am. Fed’n of Gov’t Employees v. FLRA, 712 F.2d
640 (D.C. Cir. 1983) (AFGE), we held that the scope of a
statutorily-defined grievance procedure was a mandatory subject
of bargaining notwithstanding the fact that bargaining might
displace the “standard arrangement” set forth in the Statute. Id.
at 644. See also U.S. Dep’t of the Treasury, Internal Revenue
Serv. & NTEU, 37 F.L.R.A. 1423 (1990) (agency proposal to
permit unilateral reassignment of employees a mandatory
subject of bargaining despite union’s statutory right to bargain
over reassignment decisions).
In AFGE we examined the negotiability of proposals that seek
to alter the statutory scheme. We noted in particular the
difference between provisions that confer “unilateral rights” on
one of the parties — like the rights clauses found at 5 U.S.C. §§
7102, 7106 and 71145 — and a provision that “describes in
neutral terms a clause that must be included in every collective
bargaining agreement.” AFGE, 712 F.2d at 646. “At a
minimum,” we found, “section 7106 demonstrates that Congress
knew how to write a provision defining permissive subjects of

5
These sections are commonly referred to as the union (§§ 7102,
7114) and management (§ 7106) rights clauses. Section 7102 sets
out the right of employees to participate in a labor organization and
engage in collective bargaining, while section 7114 explains the
obligations of the union both to its members and to the management
group with which it negotiates. Section 7106 details management’s
authority to, inter alia, make staffing and budget determinations free
from bargaining.
 10

bargaining unambiguously.” Id. “The Act securely establishes
that all ‘conditions of employment’ are presumed to be
mandatory subjects of bargaining….” Id. at 649. This statement
holds true “unless the Act explicitly or by unambiguous
implication vests in a party an unqualified ‘right.’ ” Id. at 647
n.27.
Subsequent decisions by the FLRA have adopted the
reasoning of AFGE that limits permissive subjects of bargaining
to “‘unilateral rights specifically vested in one party.’” U.S.
Food & Drug Admin. & Am. Fed. Gov’t Employees, 53 F.L.R.A.
1269, 1275 (1998) (quoting AFGE, 712 F.2d at 646) (FDA). See
also Am. Fed. of Gov’t Employees, Local 225 & U.S. Dep’t of
the Army Armament Research, Dev. and Eng’g Ctr., 56 F.L.R.A.
686 (employee performance rating formula falls within statutory
management rights under section 7106(a)(2) and therefore a
permissive subject of bargaining); U.S. Dep’t of Agric. Food
Safety and Inspection Serv. & Nat’l Joint Council of Food
Inspection Locals, 22 F.L.R.A. 586, 592 (1986) (statutory right
to file unfair labor practice charge under section 7118 a
permissive subject of bargaining). In FDA , the FLRA noted that
“unilateral rights may be specifically spelled out in the Statute”
or “rooted in more general statutory and policy consideration
[sic].” FDA, 53 F.L.R.A. at 1275. In order to remain consistent
with AFGE, however, any general statutory or policy
consideration giving rise to a unilateral right must be manifested
in the Statute by “unambiguous implication.” AFGE, 712 F.2d
at 647 n.27.
The Authority’s decision fails to address this precedent. “It is
well-established in this circuit that where an agency departs
from its prior cases, it must offer a reasoned explanation for its
change in view.” Dep’t of the Navy, Marine Corps Logistics
Base v. FLRA, 962 F.2d 48, 56 (D.C. Cir. 1992). The FLRA
ignored FDA’s discussion (which echoed our AFGE holding) of
unilateral rights in its treatment of the “covered by” doctrine.
 11

Rather, the Authority merely stated that it had previously
“expressly, and in [its] view correctly, held that the ‘covered by’
defense constitutes a right under the Statute.” Order, 59
F.L.R.A. at 220 (citing Soc. Sec. Admin. & Am Fed. Gov’t
Employees, 55 F.L.R.A. 374, 377 (1999) (SSA II)). This
approach might have sufficed had SSA II thoroughly addressed
the precedent. SSA II, however, was equally conclusory in its
discussion of the nature of the “covered by” doctrine. SSA II
involved the scope of the agency’s duty to bargain mid-term
under the terms of a Memorandum of Understanding (MOU)
ratified by the parties as part of the collective bargaining
agreement. The MOU modified the scope of “covered by” in
the context of a mid-term bargaining proposal. Id. at 376. In
finding that the agency had waived the full scope of the doctrine,
the FLRA, without elaboration, stated that “a statutory right,
such as the refusal to bargain based on an affirmative ‘covered
by’ defense pertaining to the parties’ collective bargaining
agreement, is subject to waiver.” Id. at 377. Notwithstanding
its use of the phrase “statutory right,” the Authority’s declaration
failed to shed much light on the issue presented here. First, its
unsupported reference to the “covered by” defense as a statutory
right was unnecessary to the holding and is therefore dictum.
Second, the Authority’s statement did not address whether the
“covered by” defense is a “unilateral right” within the meaning
of AFGE and FDA, that is, subject only to permissive
bargaining. Third, the Authority was discussing the waiver of
a statutory right under a collective bargaining agreement, not the
negotiability of a proposal to modify that right. As noted earlier,
supra note 4, the waiver inquiry is not relevant in the context of
end-term negotiations over a new collective bargaining
agreement. Thus, the issue is not whether the Union’s proposals
seek a “partial[] waive[r]” of the “covered by” doctrine or
whether the latter “flows from the Statute,” but instead whether
the “covered by” defense is a unilateral right explicitly or by
 12

unambiguous implication conferred by the Statute. See AFGE,
712 F.2d at 646–47 & n.27.
C.
The Authority’s order also fails to explain (or even to discuss)
the relationship between the Union proposals at issue and both
FLRA and private sector precedent regarding zipper and
reopener clauses. A zipper clause is a provision in a collective
bargaining agreement that waives the right of either party to
raise issues for bargaining during the term of the agreement,
whether or not the matter was considered during initial
bargaining over the agreement. Internal Revenue Serv. & Nat’l
Treasury Employees Union, 29 F.L.R.A. 162, 166 (1987). A
reopener clause specifies the conditions under which a party
may seek to renegotiate a term “covered by” the agreement.
See, e.g., NLRB v. Lion Oil Co., 352 U.S. 282, 286 (1957)
(describing reopener clause).
The Union argued before the FLRA that its proposals were
“‘similar to mid-term reopener and zipper clause proposals
which also allow the parties to determine for themselves what
matters can and cannot be negotiated during the life of the
parties’ term agreement.’” See Order, 59 F.L.R.A. at 219. The
FLRA declared the Union’s argument “without merit” for two
reasons. Id. at 221. First, it characterized the Union’s argument
as premised on the view that the “covered by” test is a
contractual rather than statutory right; a view the Authority
simply “rejected.” Id. But this one-word response fails to
explain how the Authority distinguished the Union proposals
from a reopener clause. Moreover, as our foregoing discussion
of “statutory rights” should make clear, the issue cannot be so
easily disposed of. The dispositive question is not whether the
proposal involves a “statutory right” but whether that right is
“unilateral.” See AFGE, 712 F.2d at 646–47 & n.27.
 13

Second, the FLRA treated its earlier cases discussing the
negotiability of reopener clause proposals as “not dispositive”
because “in none of those cases does the record reflect that an
agency made the claim, as the Agency does here, that those
proposals constituted permissive subjects of bargaining.” Order,
59 F.L.R.A. at 221. The Authority, however, has often ordered
an agency to bargain over a reopener proposal. See, e.g., Am.
Fed. Gov’t Employees & U.S. Dep’t of Energy, 47 F.L.R.A. 470,
471–73 (1993); Nat’l Ass’n Gov’t Employees & Veterans Admin.
Med. Ctr., 24 F.L.R.A. 147, 148–49 (1986); Am. Fed. Gov’t
Employees & Fed. Deposit Ins. Co., 21 F.L.R.A. 870, 889–91
(1986). While these decisions do not expressly refer to a
reopener provision as a mandatory subject of bargaining, they do
involve the agency’s refusal to bargain over a reopener proposal
and the resulting issuance of a bargaining order. In Am. Fed.
Gov’t Employees & Soc. Sec. Admin., 58 F.L.R.A. 341 (2003)
(AFGE II), the union proposed a limited reopener clause
regarding the implementation of a new computer program. Id.
at 342. The agency refused to bargain, claiming that the
proposal required the waiver of its statutory management rights
under section 7106 of the Statute. Id. This is precisely the
argument made by the Agency here, which the Authority treats
as a claim that the issue is a permissive subject of bargaining.
But in AFGE II, the Authority rejected the argument and ordered
the agency to bargain. Id. at 342–43 (agency “failed to
establish” reopener proposal “affect[ed]” its management rights
under Statute). Cf. id. at 343 (criticizing majority for failing to
acknowledge “long and consistent[]” precedent that reopener
proposal constitutes mandatory bargaining subject) (Member
Pope, concurring).
Additionally, although a reopener clause is a mandatory
subject of bargaining in the private sector, see McAllister Bros.
& Local 333, United Marine Div. Int’l Longshoreman’s Ass’n.,
312 N.L.R.B. 1121, 1129 (1993) (citing cases), the FLRA
conceded at oral argument that the implication of its opinion is
 14

that a reopener clause would be only a permissive subject in the
federal sector. Yet while the FLRA declares that it imported the
“covered by” doctrine from the NLRB, it has failed to justify its
departure from the NLRB’s approach to reopener clauses by
either identifying “practical distinctions between private and
governmental needs” or offering “some evidence in the
language, history, or structure of the statute suggesting that
Congress intended a different result.” Am. Fed. Gov’t
Employees v. FLRA, 853 F.2d 986, 992 (D.C. Cir. 1988)
(internal quotation marks omitted).
The precedent regarding the negotiability of a zipper clause is
not as well established as that for the reopener clause. In one of
the few cases involving a proposed zipper clause, rather than the
implementation of a negotiated zipper clause, the parties seemed
to assume that a zipper clause is a permissive subject of
bargaining. Am. Fed. Gov’t Employees & Dep’t of the Navy, 44
F.L.R.A. 543, 546 (1992) (“The Agency conceded before the
Arbitrator [with respect to zipper clause] that a party may not
insist to impasse on a permissive subject of bargaining.”). Id. at
548 (according to union the “disagreement [was over] a
permissive subject for bargaining — the union’s refusal to agree
[to] zipper language”). While 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). In the private sector, the
precedent is also not clearly established. Only the Ninth Circuit
appears to have decided the question, concluding that the zipper
clause is a mandatory subject of bargaining. NLRB v. Tomco
Communications, Inc., 567 F.2d 871, 879 (9th Cir. 1978).
 15

The Authority omits any discussion of the relationship
between a zipper clause and the Union’s proposals. In some
respects, the Union’s proposals are arguably more analogous to
zipper clauses than they are to reopeners. While a reopener
clause is ordinarily limited to particular contractual provisions
and by certain triggering circumstances, a zipper clause, like the
Union proposals, alters the scope of the duty to bargain mid-
term with respect to virtually all contract terms (or, in the case
of the Union proposals, all terms not resolved by the agreement).
In Interior, the Authority expressed its intent to wait to
determine the negotiability of a zipper clause until the issue is
“squarely presented.” Interior, 56 F.L.R.A. at 54. While this
case may not present the issue as squarely as the Authority
might like, its short-shrift dismissal of the Union’s arguments
regarding the relationship between its proposals and a zipper
clause provides us once again with little basis upon which to
uphold the Authority’s decision.
For the foregoing reasons, we remand the case to the
Authority for further proceedings consistent with this opinion.
So ordered.