The FLRA Says HHS Erred in Implementing a Partial Union Contract During the Trump Administration

The Federal Labor Relations Authority on Monday upheld a 2019 arbitrator’s decision faulting the Health and Human Services Department for illegally and unilaterally implementing a partial union contract on employees represented by the National Treasury Employees Union during the Trump administration.

In April 2019, following nearly a year of collective bargaining negotiations between HHS and NTEU over a new agreement, the Federal Service Impasses Panel sided with management on a variety of issues, including severely restricting telework, granting the agency greater latitude to reject annual leave requests and charging the union rent for use of department office space. But the panel pointedly did not issue a decision on six contract articles and instructed the parties to return to the bargaining table.

In May 2019, however, the department moved ahead and unilaterally implemented the provisions decided by the impasses panel, despite the fact that the previous contract and ground rules for negotiating the new deal both spelled out that a new agreement can only be implemented in full once all negotiations are complete. NTEU quickly filed a grievance against the department, and in December 2019, an independent arbitrator found that management engaged in “clear and patent” violations of federal labor law.

The department appealed that decision to the FLRA, arguing that they were “required” to implement the impasses panel-imposed contract language despite the fact that they had not completed negotiations on other elements of the agreement. In a unanimous decision, the FLRA disagreed.

“According to the agency, authority precedent required it to implement the imposed language immediately,” the FLRA wrote. “The agency is correct that the [impasses panel] order is binding on the parties. However, the order does not require the agency to implement the 19 articles prior to completing bargaining on the remaining articles, but instead requires the parties to adopt the 19 articles into their final [collective bargaining agreement] . . . Further, authority precedent requires the parties to satisfy their statutory bargaining obligations prior to implementing any change to conditions of employment.”

Unions Can’t Renege on Previously Reached Agreements Due to Biden Executive Order

In a separate decision issued Monday, the FLRA chided a union representing U.S. Air Force civilian employees for attempting to wriggle free from an agreement it reached during the Trump administration by citing President Biden’s executive order encouraging collective bargaining and rescinding a series of Trump-era labor edicts.

The American Federation of Government Employees Local 3254, which represents employees at the Air Force’s 434th Air Refueling Wing at Grissom Air Reserve Base in Indiana, had been negotiating with management on a new contract since 2018, eventually reaching an agreement in June 2020. But when the parties submitted the deal for agency-head review, the agency disapproved of seven provisions and sent it back for more bargaining.

The union filed a negotiability petition in connection with the disapproval, but it continued to exchange proposals with management, including on matters that were not related to the outstanding contract provisions. The parties entered mediation and eventually reached agreement on the contested provisions, although not the provisions the union recently brought up.

In December 2020, the agency sent a revised agreement to the union, incorporating the deal struck during mediation, but the union refused to sign it, citing the additional proposals it made after the initial June agreement. On Jan. 20, 2021, the agency filed a grievance against the union for refusing to sign the agreement, and an arbitrator sided with management.

In another unanimous decision, the FLRA upheld the arbitrator’s ruling, rejecting the argument that the unsuccessful agency head review of the June 2020 agreement reopened the entire contract for new negotiations. And although the union also argued that it should not be required to sign the agreement because its provisions include violations of President Biden’s Jan. 22, 2021 executive order encouraging union organizing in the federal government and rescinding a series of anti-labor edicts from former President Trump to justify its inaction, authority members found that argument lacking.

“The union argues that the arbitrator mischaracterized the union as ‘seeking enforcement’ of EO 14003 when the union was instead ‘defending against a grievance filed by the agency demanding that the union sign and executive a collective bargaining agreement that violates’ EO 14003 and related [Office of Personnel Management] guidance,” the FLRA wrote. “[However], as the agency argues, EO 14003 did not issue until Jan. 21, 2021—which, according to the arbitrator’s unchallenged finding, was more than a month after the parties had reached agreement. Therefore, the union cannot rely on the subsequent issuance of EO 14003 as a defense for its failure to execute the December agreement.”