WHAT THE “H” “E” DOUBLE HOCKEY STICKS IS THIS FLRA?

The Authority just dismissed a union’s claim that management had unilaterally implemented a change and, in the process, jumbled 40 years of labor law precedent. I am talking about the case law rich concept that when bargaining breaks down, the agency (1) must serve notice on the union that it believes there is an impasse and (2) that it intends to implement on a specified date.  That gives the union the opportunity to invoke impasse services, which delays any change until there is agreement.

In in AFGE and Dep’t. of Veteran Affairs, 73 FLRA 596 (2023) the union lost a ULP grievance and the FLRA described the arbitrator’s rationale for dismissing the grievance as follows: (The bolding is mine.)

The Arbitrator found that the April memo provided the requisite notice of the proposed change to the CWS schedule.  Addressing the Agency’s bargaining obligation, the Arbitrator found the Agency arranged the April 26 meeting and was willing to discuss the matter, but the Union caused the meeting “to be unproductive and come to a premature end.” On this point, the Arbitrator noted testimony that the Union discontinued the meeting after the Agency refused the Union’s demand to engage in bargaining over the substance of the change and undo the change.  The Arbitrator determined that no “rigid formality” was required for a meeting between the parties to be considered bargaining, and that the April 26 meeting satisfied the Agency’s contractual obligation in this respect.  Finding the Agency “clearly fulfilled its obligation under . . . Section 2.G.1,” the Arbitrator denied the grievance.

Is FLRA telling us that when bargaining breaks down–and especially when the union negotiators are loud, angry and/or obnoxious–that the agency is free to unilaterally implement? In the four decades I led union bargaining teams there were a lot of bargaining sessions that ended with shouting, vitriol, and loathsome activity by the union.  But never once did an agency take that as the right to flip the implementation switch. Why?  Because a ton of FLRA case law said that would be very wrong and costly to do.

I expect this kind of “the-union-is-always-wrong” mindset from FLRA holdover Colleen Duffy Kiko, but I am surprised the decision got two signatures. Everyone in town knows that the FLRA leadership wants to make it appear that it can agree on something while it awaits the tie-breaking vote’s confirmation. That is lovely. But what that predisposition has done is now open a new era of case law development.  The issue will be “Was the union’s bargaining behavior so unpleasant that the agency can unilaterally implement?” What a waste of government resources!  What a sucker punch to the unchallenged precedent that absent some emergency or function necessity the agency always must notify the other party there is an impasse and give it a chance to trigger impasse proceedings.

Call out the bargaining behavior police. Someone write a book of bargaining etiquette, e.g., on what side of the laptop should a negotiator’s cell phone be when listening to the agency’s arguments?

Here’s hoping AFGE hustles this case into court to remind all FLRA members that they are there to settle the bargaining process, not ignite it.