FLRA Negotiability Proceedings — What Federal Unions Can Bargain Over
Legal Authority
- 5 U.S.C. § 7106 — Management rights: reserves to management the right to determine mission, budget, organization, number of employees, and internal security practices; union proposals that interfere with these rights are outside the duty to bargain unless they constitute "appropriate arrangements" or "procedures" under § 7106(b)
- 5 U.S.C. § 7117 — Duty to bargain: agencies must bargain in good faith over conditions of employment to the extent not inconsistent with law, government-wide rule, or agency regulation; proposals outside this scope are non-negotiable
- 5 CFR Part 2424 — FLRA negotiability proceeding regulations: establishes the petition process, briefing schedule, and standards for determining whether a union bargaining proposal or contract provision is within the statutory duty to bargain
Key Mechanics
A negotiability proceeding begins when a union submits a bargaining proposal and management declares it outside the duty to bargain. The union can petition the FLRA to issue a written ruling on whether the proposal is negotiable. The FLRA applies a multi-part analysis: first, whether the proposal concerns "conditions of employment" (within scope); second, whether the proposal conflicts with a law, government-wide rule, or applicable agency regulation (which would make it non-negotiable); third, whether even if it conflicts with management rights under § 7106(a), it qualifies as a permissible "appropriate arrangement" for adversely affected employees or a "procedure" for exercising management rights under § 7106(b). An FLRA ruling that a proposal is negotiable requires management to bargain; a ruling that it is non-negotiable allows management to act unilaterally. Both parties can seek judicial review of FLRA negotiability rulings in the U.S. Court of Appeals for the D.C. Circuit.
Current Rule (2026)
| Parameter | Value |
|---|---|
| Citation | 5 CFR Part 2424 |
| Issuing agency | Federal Labor Relations Authority (FLRA) |
| Statutory authority | 5 U.S.C. § 7134 |
| Last major amendment | August 29, 2025 (revised procedures effective) |
What This Rule Does
Federal agencies and the unions that represent their employees don't get to bargain over everything. The Federal Service Labor-Management Relations Act (5 U.S.C. Chapter 71) draws a line: some subjects are within the "duty to bargain," meaning both sides must negotiate in good faith; others fall outside that duty, meaning management can act unilaterally. When a union and an agency disagree about which side of that line a proposal falls on, the FLRA resolves it through a negotiability proceeding.
Five CFR Part 2424 governs how these proceedings work. A union can petition the FLRA to issue a written decision determining whether a bargaining proposal or a contract provision is within the duty to bargain. The FLRA acts as a neutral adjudicator — it reviews legal arguments from both sides and issues a binding ruling.
Negotiability is one of the most important levers in federal labor relations. An FLRA ruling that a union's proposal is negotiable forces management to bargain. A ruling that it's not negotiable resolves the dispute without requiring bargaining.
Key Provisions
- § 2424.1 — Applies to all petitions for review filed on or after August 29, 2025 (current rules); earlier filings follow prior rules
- § 2424.2 — Key definitions:
- Bargaining obligation dispute: a disagreement about whether the parties are legally obligated to bargain in the specific circumstances of a case (e.g., a claim that the proposal concerns a permissive rather than mandatory subject)
- Negotiability dispute: a disagreement about whether a proposal or provision is within the duty to bargain or contrary to law — regardless of whether the agency has also asserted it has no obligation to bargain
- § 2424.11 — A union may file a petition after receiving an agency's written allegation that a proposal is not within the duty to bargain, or after requesting such an allegation in writing and getting no response within 10 days
- § 2424.20 — Only the exclusive representative (the certified union) for the bargaining unit may file a petition for review
- § 2424.21 — A petition must be filed within 15 days of service of the agency's written allegation or the agency head's disapproval of a negotiated provision; if the agency never serves a written allegation, the petition may be filed any time before the conclusion of bargaining
- § 2424.22 — The petition must describe the proposal or provision and state why the union believes it is within the duty to bargain or not contrary to law; it initiates the formal proceeding and puts the agency on notice
- § 2424.23 — The FLRA may schedule a post-petition conference (by phone, in person, or other means) to clarify the issues; time limits continue to run during the conference unless the FLRA suspends them
- § 2424.24 — The agency must file a statement of position explaining why the proposal is outside the duty to bargain or contrary to law; the agency must identify any disputed facts
- § 2424.25 — The union then files a response explaining why, despite the agency's arguments, the proposal is negotiable
- § 2424.26 — The agency may file a short reply limited to new factual or legal arguments raised for the first time in the union's response
- § 2424.27 — No additional submissions beyond these three rounds without the FLRA's written permission upon a showing of extraordinary circumstances
- § 2424.30 — If the union has also filed a related unfair labor practice charge or grievance, the FLRA may dismiss the negotiability petition (the charges must be resolved first) unless the proposal is a "ground rules" proposal
- § 2424.31 — If factual disputes need resolution, the FLRA or its representative may direct the parties to provide documentary evidence, hold oral arguments or hearings, or take other steps to develop the record
- § 2424.32 — The union bears the burden of explaining its proposal and making arguments that it is within the duty to bargain; the agency bears the burden of demonstrating that it has a compelling need for any regulation that conflicts with the proposal
- § 2424.40 — The FLRA issues a written decision at the earliest practicable date; if the proposal is within the duty to bargain, the order requires the agency to bargain; if not, the order resolves the dispute in the agency's favor; the agency must comply within 60 days
- § 2424.41 — If the agency fails to comply with an FLRA order within the 60-day compliance period, the union may report the failure to the appropriate Regional Director
- § 2424.50 — Illustrative criteria for "compelling need": an agency regulation has a compelling need if it was issued by the agency or a primary national subdivision and satisfies at least one of several criteria, including that it implements a congressional mandate, is essential to the agency's mission, or was negotiated with a union at a higher level
How It Affects You
Federal employees and union members: If your union proposes a change to working conditions and management refuses to bargain — claiming the proposal is outside the duty to bargain — your union can take the dispute to the FLRA. The FLRA's ruling is legally binding. If the FLRA rules the proposal is negotiable, management must come to the table within 60 days or face an unfair labor practice finding.
Federal agencies and managers: When you issue a written allegation that a union proposal is non-negotiable, you're starting a clock. The union has 15 days to petition the FLRA. You then have the opportunity to file a statement of position explaining your legal basis. If you claim a compelling need for an existing regulation that conflicts with the proposal, you must meet one of the illustrative criteria in § 2424.50 — the bar is meaningful.
What kinds of proposals end up in negotiability proceedings? Common examples include proposals about: work schedules, telework policies, use of government facilities, performance appraisal procedures, and the exercise of management's retained rights under 5 U.S.C. § 7106. Proposals that conflict with law, government-wide regulations, or management's reserved rights are typically found non-negotiable. Proposals about working conditions within management's discretion are typically found negotiable.
The FLRA revamped these rules effective August 29, 2025, streamlining the process and clarifying the definitions of bargaining obligation disputes versus negotiability disputes — two categories that were previously conflated and generated significant litigation.
Statutory Authority
This rule implements:
- 5 U.S.C. § 7134 — FLRA authority to prescribe rules and regulations necessary to administer and enforce Chapter 71 of Title 5
- 5 U.S.C. § 7117 — The statutory duty to bargain in good faith; defines what is within and outside the duty to bargain
- 5 U.S.C. § 7106 — Management rights reserved to federal agencies (prohibited subjects of bargaining include the right to determine mission, organization, staffing levels, and to hire, assign, and direct employees)
Recent Rulemakings
The current rules (§ 2424.1) apply to petitions filed on or after August 29, 2025. The 2025 revisions updated definitions, streamlined the filing sequence, and clarified the FLRA's discretionary authority to hold post-petition conferences.