STATUTORY GOOD FAITH VERSUS CONTRACT GOOD FAITH
The law requires that management engage in “good faith” bargaining with the union. But the union is also permitted to argue that its contract contains a separate and additional obligation to bargain in good faith. In fact, the union gets a tactical edge if it puts one in the contract.
Take a look at BORDER PATROL COUNCIL, 66 FLRA No. 37. That AFGE Council convinced the arbitrator that its contract contained a good faith requirement separate and apart from what the law requires, and the arbitrator found management violated it. As a result, she imposed a very significant back pay penalty on management, not to mention yet another embarrassing public decision criticizing the bargaining ethics of the Customs and Border Patrol LR staff.
When management filed exceptions with FLRA to the arbitrator’s award, the Authority dismissed them saying, “Specifically, the Arbitrator found that ‘[i]mplicit in Article 25 . . . is the need for fluidity and adaptability,’ and that, ‘based upon the bargaining history involv[ed] [in] this dispute, the record does not show a willingness of the Agency to compromise‘. . . .the Arbitrator found that the Agency violated the Articles 3A and 25. . . .At no point did the Arbitrator expressly find that the Agency violated the statutory duty to bargain in good faith. Moreover, a review of the pertinent provisions of the award in context supports a conclusion that the Arbitrator found that the Agency’s bargaining conduct violated the parties’ agreement.”
Consequently, when the agency argued that the arbitrator’s “good faith bargaining” decision was inconsistent with law, the FLRA ruled that was irrelevant because the legal “good faith” bargaining standard was not at issue. The only choice the agency was left with was to argue that the arbitrator’s decision failed to draw its essence from the parties’ agreement. That is a much tougher argument to win. (For all you case law geeks, check out footnotes 11 and 12 for some fine points of this legal rule.)
The message for all us union folks is that when we grieve ULP allegations about management’s failure to bargain in good faith, e.g., it made unilateral changes in working conditions, it refused to provide necessary information, we should make two arguments. The first is that management violated our contract requirements for good faith and, even if that is not correct, it also violated the statutory obligation. That would permit the arbitrator to find for us on one allegation, but not the other. Some might say that gives the union two bites at the good faith bargaining obligation, but who that is the law.
Of course, if your contract does not already contain language requiring certain good faith behavior from both parties during midterm bargaining, put some in there soon.