FLRA Narrows Labor’s Ability to Litigate Bargaining Disputes

Members of the Federal Labor Relations Authority on Monday voted along party lines to restrict unions’ ability to seek redress for alleged misconduct that takes place as agencies negotiate new collective bargaining agreements.

In a 2-1 decision, Republican members of the body that oversees labor-management relations at federal agencies tossed out four different arbitrators’ decisions—three of which were in favor of management—that derived from grievances filed over the course of contract negotiations between the National Treasury Employees Union and the Health and Human Services Department.

Although each of the grievances, all filed by NTEU, dealt with separate allegations of impropriety, including unilateral implementation of ground rules, refusing to discuss contract proposals, bad faith bargaining, and the unilateral declaration of an impasse, the FLRA majority said the grievances all violated a section of the federal labor relations statute barring parties from seeking redress from both grievances and formal FLRA unfair labor practice complaints. That’s because the union in 2017 had filed an unfair labor practice complaint after HHS rejected the parties’ ground rules as part of the agency head review process.

“Generally, negotiations over a collective-bargaining agreement constitute a single set of factual circumstances,” the majority wrote. “This is particularly relevant here, where with each grievance, the union presented evidence from a previous filing to allege, under the totality of the circumstances, that the agency bargained in bad faith. The union’s frequent reliance on facts that occurred throughout the bargaining process shows that each grievance was dependent on the circumstances that came before it.”

The GOP FLRA members also concluded that the grievances were redundant along with the original unfair labor practice complaint because they “advance substantially similar legal theories,” in that all five complaints allege bad faith bargaining in some form.

FLRA Chairman Ernest DuBester, the lone Democratic appointee, issued a dissent, in which he argued that his colleagues ignored the fact that each complaint and grievance in the case involved “specific and discrete” allegations that HHS violated its duty to bargain in good faith. And he noted that the union’s referencing prior grievance and unfair labor practice complaints in its filings served the purpose of providing arbitrators with “background and context,” rather than an effort to relitigate the specific claims in those other proceedings.

“More plainly stated, the majority concludes that because the union filed a ULP charge alleging that the agency took an action at the outset of the parties’ negotiations that was inconsistent with its duty to bargain, the union was precluded from alleging, through the parties’ negotiated grievance procedure, that any subsequent agency action taken during the entirety of the parties’ term negotiations was inconsistent with its statutory bargaining obligation,” DuBester wrote.

DuBester also strenuously disagreed with the idea that the four grievances involved “substantially similar legal theories.”

“The majority bases this conclusion upon the fact that ‘all of the union’s filings allege that the agency engaged in bad-faith bargaining,’” he wrote. “But in making this assertion, the majority either fails to realize, or willfully ignores, that a party can violate its statutory duty to bargain in good faith in a variety of ways.”

In a statement, NTEU National President Tony Reardon criticized the decision, and indicated his union is examining "all legal options," including an appeal in U.S. Circuit Court.

"Once again, the Trump appointees to the Federal Labor Relations Authority have trampled precedent and wrongly vacated a series of decisions that the Department of Health and Human Services had engaged in unfair labor practices against employees represented by NTEU," Reardon said. "Neutral arbitrators have repeatedly found HHS violated the law that governs labor relations in the federal sector, yet the two Republican appointees to the FLRA—one of whom is serving on an expired term—reversed those findings on procedural grounds."

In the nearly six months since President Biden assumed office, he designated DuBester as chairman of the FLRA, and he renominated the longtime member for a new term last month. But he has failed to nominate a second Democrat to serve at the agency. Member James Abbott is serving on a term that expired in 2019, while former Chairwoman Colleen Duffy Kiko’s term expires next year.

This story has been updated to include comment from NTEU.